ADDRESS AND MEMORIAL 



In Opposition 



TO THE BILL 



(S. No, 300 and JS. It. No, 1612), 



U r 



To Amend the Statutes relating to 




And for other ptirposes. 



9^ 



Read before and adopted by the 

CINCINNATI BOARD OF TRADE, 

December 18tli, 1878. 



. W- . w: ' ^/Jr- 



^. 



CINCINNATI 
TIMPS POOK AND JOB PRINTING KSTABLISHMENT. 

1879. 



3 



^ 



CONTENTS. 



Allen, S. S 40 

American System 10, 12, 64, 65, 66 

Atkins, J 38 

Bessemer, H 44 

Bills 300 and 1,612 7 

Boot and Shoe Manufacture 54 

Boulton, M 73 

Bramah .^.. 73 

Breech-Loaders 31 

Certified copies should be cheapened 9 

Civilization menaced in repressing invention =... 67 

Clarke, F.N 42 

Clandestine use facilitated by Sections 1 and :2" 9 

Clothing cheapened by invention 13, 48, 52 

Cook, P 45 

Cooley, A 43 

Commerce promoted by inventions 70 

Composite carriage wheels 42 

Constitutional clause, tenor of 13,76 

Contract between inventor and the public 59, 63 

Cort, H 20 

Cotton gin 52 

Cotton yield, increase of 53 

Criterion of value 24,58 

Decarbonizing iron •.... 43 

" Defunct" inventions 54 

Digests needed 9 

Dorsey, 32 

Dudley 20 

Early remunerativeness not a criterion 24,58 

Early profitable recognition seldom attained by radical 

inventions 14 to 60 

Elias Howe, Jr 48 



4 CONTENTS- 

English system works badly,... 61, 62, 64, 70, 71 

Enlightened communities favor intellectual property... 10 
Examining system ...12, 63, 71 

Fa6ts, proponents' conclusions contradicted by 7, 14 to 60 

Farey, J 62 

Fees should be administrative only 13, 68,76 

First Fruits, invention entitled to its own 13 

Food cheapened by invention.... 13,46 

Gallahue, A. 64 

Germinal inventions 62 

Goodyear, N. 54 

Harvester rake 32,38 

Harvesters 40,46 

Hargreaves, W 22 

High fees, bad effect^of 27, 69, 70, 71, 72 

Hicks, W 31 

High pressure steam engine 19 

Holt, commissioner 58 

Hoops, notching 31 

Hostility to patents 18, 21, 23, 35. 38, 53 

Howe, Elias 48 

Howitt, W 73 

Houghton, J 27 

Hussey, 46 

Humanity, the cause of inventors is that of 13,67 

111 usage of inventors 14 to 60 

Invention promoted by patent grants..7, 10, 11, 16, 36,69, 70,72 

Inventors the vanguard of progress 13 

Iron smelting 20 

, Jacquard loom 30 

Jeopardy to other vested rights by attacks on patents.. 10 
Joseph Marie Jacquard 30 

Kelly, W ; 43 

''Kill the patent" 14,23,24,33, 64 

Kingsland, J. , 45 

Lamson, D 31 

Landed property (like that in patents) of recent date.. 11 

Lee, W 16 

Loom, stocking 16 



CONTENTS. 5 

Loom automatic 30 

Lost arts. 73 

Louis, L • 34 

Master of the situation, patentee seldom is 14 to 60 

McCulloch 62 

Mechanical difficulties 25, 40, 57 

Melodeons 34 

Money test, unjust and ineffectual 14 to 60, 71 

Nasmyth, J 26 

Oppression of inventors inexpedient 27,18 

Palissy, B..... 28 

Paper pulp 33,45 

Paper bags 41 

Pasteboard cutter 42 

Patent grants just and expedient 7, 10, 11 

Patent fund, how it should be applied 9, 12 

Patents, attack on, jeopardizes other property 10 

Patents the only known practicable reward for invention 12 
Patent Office records should be examined by manufac- 
turers 61 

Peg- s trip 16 

Periodical fees inconvenient 66 

"Pirates" 59 

Planing m achine 37 

Plow (cast iron) 52 

Policy of U. S. Government toward inventors 50, 69, 70, 72 

Porcelain 28 

Poverty and misfortunes of inventors 14 to 60 

Prejudice against patents 10,53 

Proposed measures unjust and impolitic 14, 15, 27, 39,44 

Property in land and in patents compared 11 

Progress essential to civilization 13 

Promotion of invention the sole Constitutional object.. 13,76 

Proponents' statements 14 

Public, importance of inventions to the 69 

Radical inventions slow to reach recognition 14 to 60 

Recognition of inventions, tardy public 14 to 60 

Recapitulation 75 

Restrictions proposed, unnecessary 60, 62 

Rice, B. F 41 



6 .CONTENTS. 

Re-issue applications should be public 9 

Repressin g invention, danger of 13-67 

Rolling mill • 20 

Sarven, J.D 42 

Saw-mill •' 27 

Sections 1,2,3 and 9 8,9 

Section 11 ....7, 14 to 60, 76 

Seed, inventions compared to 61 

Sewing machine 48 

Sleeping cars 35 

Smeaton 25 

Spinning Jenny. 22 

Steam engine 23 

Steam-hammer.. 26 

Sturtevant, B. F 16 

Suggestions 9, 12 

Tardy recognition of inventions.. 14 to 60 

Tax on invention ; 13, 68, 76 

Trifling inventions 61, 63 

Tyndall 66 

"Unconscious use" » 61 

Veneers 45 

Voelter, H 33 

Vulcanite • 54 

Watt, J 23 

Whitney, E.... 52 

Whiffle-tree hooks 43 

Wollaston..... 73 

Wolff, A 19 

Wood, J 52 

Woodruff, T.T.... 35 

Wood worth, W 37 



ERRATA. 



Page 14, foot, for "application" read implication. 

Page 24, third paragraph, for " devised " read denied. 

Page 24, fourth paragraph, for "criticism" read criterion. 

Page 58,. last paragraph, for " Hoyt" read Holt. 

Page 08, second paragraph, for " ligitimati " read legitimate. 



AN ADDRESS 



ON 



Proposed Changes in the Patenl Laws 

Delivered by GEO. H. KNIGHT, at a Public Meeting, called by 
the Cincinnati Board of Trade, December i8th, 1878. 



(ordered to be printed). 



Mr. Chairman and Gentlemen of the Board of Trade : 

Notwithstanding the late remarkable development of indus- 
trial art and its manifest outgrowth from the protection which 
the system of patent grants accords to invention ; a sentiment 
more or less inimical to that 'system has manifested itself in 
certain bills now before our National Legislature, and known as 
Senate bill No. 300, and House bill No. 16 12. These bills 
being substantially identical, may be treated as one. In the 
belief that the sturdy sense of justice inherent in the Ameri- 
can people is amenable to the argument oi facts, a consideration 
of those recited in the following pages is asked of the public 
and their representatives in Congress. These facts indicate, it is 
thought, very conclusively, that the American system of patent 
grants is right in principle and happy in results — and that the 
changes now proposed will be in a high degree unjust, mis- 
chievous and impolitic. 

While the facts cited go to show the impolicy of all such 
proposed measures as are calculated to embarrass or restrict the 
rights of patentees, the present remarks are directed more par- 
ticularly to the nth Section of the bill, because affording, it is 
thought, a test question, whose answer, will indicate the tenor 



8 EFFECT OF PATENT GRANTS 

of legislation on patents, and because it seems to have received 
less attention than some other highly objectionable sections^ such, 
for example, as Sections ist, 2d and 3d, about which the con- 
tests before the Committees have mainly waged, if contests they 
can be called, in which the advocates of the bill have occupied 
almost the entire time of the Committees. 

The bill is a medley of good and bad measures, of which the 
latter are believed to very mischievously preponderate. 

Before a consideration of Section 11 is given, a brief notice 
will be taken of some of the others : 

Section i is, in effect, a statute of limitation, restricting to 
four years, after the alleged offense, a right of action in patent 
causes. This would be most unjust to patentees. Invasions of 
this class of property are far more difficult to detect than tres- 
passes on land ; partly by reason of their more complex charac- 
ter, and partly because of their number, distance, innccessibiiity 
and other causes. In the case of some valuable inventions, the 
patentee might have to enter a hundred suits at once, if he could 
find the infringers, and the money, where, even now, he is often 
put to straits to incur the expense of one. His right of select- 
ing, for example, some single infringer of known responsibility, 
would be practically abolished. Even were the proposed meas- 
ure just or politic, it would be unnecessary, beciiuse a patent 
carries with it its own peculiar* limitation in the brevity of its 
tenure; while the proviso in this section, which allows stay of 
proceedings in the ninety-nine suits, presumes that he has at 
least instituted them, paid attorney and court fees, given bonds, 
etc. The proposition is a monstrosity, little short of a vital stab 
at the policy of granting patents, because it would destroy the 
value of the select few of highly successful patents, the hope of 
obtaining which has been the goal and inspiration of all modern 
invention, and which alone justifies the probable risk and certain 
outlay. 

Section 2 is, if possible, yet more ill-advised; it bears the 
mark of the patent pirate throughout. Its somewhat verbose 
a.nd involved phrases may be sifted down to two propositions, 
namely : 

I. The trespasser shall not be mulcted in damages exceeding 
payments known to ])e made by persons regularly Hcensed, no 
matter how pr-ofitabk the piratical use may have been. For 



ON THE PROGRESS OF INDUSTRIAL ARTS. 9 

example : A desires to license B to use his(A's) improvement, but 
B, who is wise in the wisdom of this world, replies, * 'No, I will 
let C try the thing ; I have small faith in novelties, and none in 
yours; but, should it prove to answer C's purpose, I may, per- 
chance, conclude to employ it. In that event, however, I shall 
not await either your leave or license ; for, should you prosecute 
me, I can, at the worst, be charged no more than your accus- 
tomed license fee." 

2. A proviso in this section enacts that, if no profit to the user 
can be proven to have accrued from his piratical use of the in- 
vention, no damage shall be assessed. This clause manifestly 
gives the fraudulent user an advantage over the legitimate one. 
Thus: A hires a horse to go and collect a debt, but does not 
succeed in making the collection ; B uses the same horse clan- 
destinely with the same object and result. The honest user must 
pay his livery bill, but the thief is free ! 

Any one familiar with the ways of corporations with inventors 
may see how sections 3 and 9 may be made instruments of 
oppression of an indigent patentee. Section 3 permits the Court 
to dispense with bond or surety, while Section 9 is wholly silent 
in that respect. It is difficult to conceive of any honest reason 
for such exceptional liberty. Moreover, Section 9 would seem 
to be rendered entirely supererogatory by section 10. 

Were Section 3 amended by making it obligatory on tribu- 
nals to require bond and security, and Sections i, 2, 9 and 11 
utterly erased, it is believed the bill would be in the main bene- 
ficial; but it might be made greatly better by a few additional 
clauses, such as: 

[a). A means for enabling the use — under proper safeguards 
— of the surplus patent fees now accrued, and which may here- 
after accrue ; — in the preparation of Digests and other appliances 
for increasing the efficiency of the Machinery of Examination. 

(5). An obligation upon the Commissioner to give applications 
for Re-issue publicity similar to that which obtained in applica- 
tions for extension, so as to remove at once and forever the ex 
parte taint which now attaches to such procedures. 

{c). Permission to the Commissioner to convert, officially 
printed copies of patents, whether foreign or domestic, into 
certified copies, at the cost of such copies and of his certificate. 



lO EFFECT OF PATENT GRANTS 

Some of the propositions inimical to the system, compel its 
defenders to certain very fundamental enquiries, affecting not 
only this class of franchises, but vested rights of every kind, 
and, when traced to their corollaries, are found to menace all 
property, all human culture, all progress, all civilization. 

The ill-advised attacks on intellectual property, in its essence, 
justify, and may necessitate, a comprehensive scope of enquiry, 
such as would far transcend the usual limit of a congressional 
memorial. 

Suffice it at present to say that it is believed that the verdict 
of the more enlightened communities in favor of private holdings 
of ''realties" will — in a not distant future — -be at least as em- 
phatically pronounced in favor of intellectual property. 



THE POLICY OF PATENT GRANTS. 

The marvelous instrumentalities by which, in almost every 
department of industry, the man of our day is enabled to con- 
vert, to his use and convenience, the raw materials and wild 
forces of nature, are well known to have reached their most 
marked development within comparatively circumscribed limits, 
both of space and time. These .limits have been in a very 
striking degree conterminous with that system of polity known 
as patent grants. England, which was the first, and for nearly 
two centuries, the only nation to adopt the principle of system- 
atic protection of inventors, led off very conspicuously in the 
march of modern labor-saving improvements, and more recently, 
our own country, which has for three generations enjoyed a 
patent code of exceptional liberality, or rather of exceptional 
justice to inventors, is nozv confessedly in the van, her manufac- 
tures successfully invading markets that lately counted her 
among their best customers. 

But, in the face of these acknowledged facts, the policy of 
patents has been assailed on both sides of the Atlantic. Some 
would even sweep away all laws which recognize property in 
the products of intellectual labor, while others would so embarrass 
and abridge them as to make them of little worth. Of these 
two classes of assailants the last named is by far the more 
dangerous, because its attacks are more methodical, more per- 



ON THE PROGRESS OF INDUSTRIAL ARTS. II 

sistent, and above all, because they are usually conducted under 
the mask of friendship for the system. Indeed, these gentlemen 
are quite favorably disposed toward the law, they are only 
against its enforcement — that is all. 



FEOPEETY IN PATENTS. 

With the revival of the arts in Europe, after their long medieval 
slumber, and while as yet most of the soil of England was held 
either in common or as mere fiefs of the Crown in consideration 
of military service, a new and important class of property began 
to receive recognition, although, at first, in a desultory way : 
this property w^as neither in land nor in chattels ; but in an art. 
Its systematic, legal definition is now well known to have been 
seemingly accidental and— like that in land — of recent date; and 
to have originated in a movement, not to institute new monop- 
olies, but to abolish old ones. 



EXPEDIENCY OF PATENT GEANTS. 

First under royal grants, and afterward, A. D 1623, system- 
atized and placed under sanction of law, there was created a new 
kind of property, whereby the man rich in ideas — and possibly 
in ideas alone — was enabled to compete, in the world's market, 
with the possessor of land, money, or chattels. 

The recognition of public obligation to the creators of arts, 
while an act of simple justice, was, as events have abundantly 
demonstrated, in the highest degree beneficial to the community; 
it was at once right, wise and expedient. At the time of this 
now celebrated enactment, England occupied but a subordinate 
position in manufacture. Her chief export was raw wool, which 
was spun and woven abroad. The encouragement given to 
ingenuity, both native-born and that which sought her fostering 
protection from across the channel, very soon brought her to 
the first rank in manufactures and commerce ; a position which 
she has ever since maintained. 

The recognition of the claims and importance of invention, 
while of quite modern date, is nevertheless eminently proper, 
resting, as it does, on a higher order of service than can be 



12 EFFECT OF PATENT GRANTS 

alleged as the foundation of title in any mere concrete property, 
5uch as land or chattels ; because the earth's surface and the raw 
materials of nature exist already to hand; the tiller of the soil or 
the feller of the forest does but appropriate existing material ; but 
the originator of a useful invention, or the author of a book or a 
great work of art, is, in a sense, a creator, and has added abso- 
lutely to the world's resources. 

The invention seems much more to its originator than any 
mere chattel property, and to possess a double value in his eyes, 
3.S not only the fruit of much labor and privation, but as the off- 
spring of his brain, — a part of himself 

It may be admitted, then, that it is expedient that invention be 
encouraged, and the only question is how? No plan, ever yet 
proposed, approaches the conditions of either practicableness or 
fairness that the policy of patent grants affords, and this is true, 
in spite of the defects in administration, of a system yet in its 
infancy. It is impossible that a basis of property so great and 
novel should enter into transactions without some friction. 
Time is necessary for the new and imperfectly defined interests 
created to find their proper and accepted places in the social 
-economy. The authors and, in a greater degree, the users of 
invention have to be schooled in their respective obligations — 
the community generally is the great and chief .beneficiary, and 
lias the least right to grumble. Let us have patience, and 
"*' hasten slowly," especially as to the adoption of reactionary ex- 
pedients, and beware of imputing to the system itself, mere faults 
■of administration, from which no branch of the public service is 
exempt. 

Ours is the only country in which the inventor receives some 
approximately just equivalent for the fees exacted, in the labors 
of a corps of examiners as to the patentable novelty of his 
invention, and even the American system has never had fair 
trial, because Congress, not satisfied with making the system 
self supporting, extorts, even with the present fees, a revenue 
from the hard and slender earnings of the ingenious. Were the 
funds thus retained in the public treasury, permitted to be 
expended in their legitimate sphere, the community would be 
immensely the gainer, by the additional assurance of validity of 
granted patents, in consequence of more careful sifting of appli- 



ON THE PROGRESS OF INDUSTRIAL ARTS. 1 3 

cations ; and bona fide inventors would be benefited by the 
increased respectability of such intelligently considered grants. 

Life is so largely a question of food, as to have caused Dr» 
Samuel Johnson to have defined a benefactor of his species ''the 
man who caused two blades of grass to grow where one grew 
before." Yet there are those, who would endorse this sentiment 
in the abstract, who yet would deny invention the privilege of 
gathering its own first fruits. 

It has been shown that, the higher the civilization, the 
greater the number who are warmed, fed and clothed, and the 
better is their housing, food and raiment. Of this civilization, 
progress is the breath of life. As old necessities become satisfied 
and humanity assumes a higher and wider scope of existence, 
new wants and more lofty aspirations are developed. In this: 
mafch of improvement, inventors and discoverers are the vanguard ; 
without this element, society would stagnate and retrograde, as 
all history shows; its decay 

"hath dried up realms to deserts." 

The cause of inventors is therefore none other than that of 
humanity itself. 



.^^ SHALL INVENTION BE Tx\XED?-« 

If it be both lawful and expedient to ''promote" invention 
(and the constitutional clause which authorizes patent grants 
explicitly states this as the sole object), the fees exacted of 
applicants for patents should, it would seem, be no more than 
sufficient to cover the expenses of the Patent Office, and if they 
overrun this amount — as they notoriously do — they should be 
lessened, or the surplus should be appropriated to increasing the 
efficiency of the machinery of examination. Furthermore, the 
imposts should be simple, few and not vexatious on the inventor, 
his heirs and assigns. Yet it is seriously proposed in the pend- 
ing bills before Congress, to add to the already sufficient duty, a 
large additional one, which, being apportioned in several install- 
ments, will greatly and unnecessarily complicate and embarrass 
the holder of this species of franchise, and will operate to effect- 
ually discourage improvement in the useful arts, instead of to 
"promote" them, as enjoined in the Constitution. Now what is 



14 EFFECT OF PATENT GRANTS 

the reason adduced for this additional mulct on ingenuity? 
Take the explanation of proponents' chief spokesman, before 
the House Committee, Judge Storrow. 



"THE MONEY TEST." 

Features are often patented which are afterwards found neither 
to be useful^ nor to hold out hopes of usefulness enough to lead 
to attempts to improve them. A subsequent inventor, making 
a truly useful machine, unconsciously uses one of those features, 
and the patent stops him; it does not promote the progress of 
the useful arts that such a patent should live merely to hinder- 
and not to constitute progress. >i< * * Virtual abandonment 
by the patentee is the only safe test ; and this section, for this 
purpose, requires a fee of ^50 at the end of four years and ;^ioo 
at the end of nine years ; non-payment of either is to "Kill the 
patent." 

The learned counsel of the Boston Shoe and Leather Associa- 
tion does not explain why ^'a subsequent inventor" should desire 
to use a "useless" feature, nor whether the subsequent inventor 
WQuld be willing that one occupying the relation to him that he 
does to the first should '^unconsciously use" one of his features; 
he does, however, avow that the purpose of the tax on the orig- 
inal patentee is to "Kill the patent." There is no obscurity 
or contradiction of terms in this phrase. "Kill the patent" 
is an expression perfectly intelligible to every patentee, and to 
every patent pirate in the land. The expression "Kill the 
patent" unveils the real animus of the movement. 

Judge Storrow says : ''If the invention at once takes place 
in the arts as a practical thing, or if it so clearly embodies a 
great step forward that the inventor or others are incited to de- 
velop it to a practical and pecuniarily profitable application, it 
constitutes a progress, and the purpose of the law is satisfied." 

FKOPONENTS' STATEMENTS. . 

These statements imply: 

1 . That the patentee of a valuable invention can 
always pay the proposed additional fees when due, 
if he so desires ; an application we shall shozv, from the learned 



ON THE PROGRESS OF INDUSTRIAL ARTS. 1 5 

advocate's own admissions and those of his colleagues, to be the 
very reverse of the fact. 

2, That the patentee is master of the situation, and 
can always himself procure the practical application 
of his invention or induce others so to do : an im- 
plication which will be proved^ out of the gentleman' s own state- 
ments, to be egregious ly and cruelly at variance with the history of 
almost all great inventions. 

3, That inventians which " embody a great step 
forward" [a radical departure] are those which most 
surely and most early secure recognition and "prof- 
itable application." lVhe?i in fact, the annals of such inveii- 
tions as cited by the ge?itleman himself and by his colleagues — 
notably Professor Coffifi — are crowded zvith melancJioly evidence of 
the precise opposite. 

4 The learned advocate says : " The system [heavy 
deferred payments] works well abroad," although the 

facts quoted by tJie learned advocate and his colleagues will be 
found to completely contradict this statement a?id to establish the 
truth of the assertion that — relatively to that in use here — tJie best 
of the foreign patent systems — tJiat of England — ' ' woi^ks badly j" 
not * * well enough ''—as alleged. 

Of the above implications, on the truth or fallacy of which 
the positions taken by proponents depend : the first three will be 
considered together. 

First, then, it may be conceded that the small minority of 
well-to-do inventors may be benefited by the proposed tax. 
because it makes their franchises more select. But what of the 
nineteen in twenty, poor men? Those who will take the trouble 
to examine the annals of invention, and especially the experi- 
ences of those '^ world movers" who made the most radical 
departures, will find them teeming with contradictions of these 
gentlemen's hypothesis. Space permits only the citation of a 
few illustrations. 

Mr. H. D. Hyde, the special representative of the Boston Shoe 
and Leather Association, admits that the all-important peg-strip 
"was invented by a poor man" (p. 59), and adds: *'So far as 
my personal observation has gone, I believe the greater portion 



1 6 EFFECT OF PATENT GRANTS 

of inventions are made by men who have not much thrift in the 
way of business, men without much business tact, and who are 
always looking forward to the protection of the patent law for 
their reward. These men do7it look to days' wages, but are 
always thinking of the great reward a successful invention will 
bring them, under the patent law ; they always believe that they 
will succeed sooner or later, and are that kind of men that are 
ready to work and wait for a great future. But they wouldn't do 
it if they did not see that at the end. The patentee. has a spirit 
of invention born within him, and the patent law is a sort of 
foster-mother. 

B. F. STUKTEVANT. 

''If I had the time or opportunity, " says Mr. Hyde," ''I could 
give some instances which are known to me personally : for 
example, if you will allow, take this pegging machine and peg- 
wood. The ina7i who invented both these was very poor. He was 
at work trying to get a living in bottoming shoes, and he believed 
that a better way could be devised. He was SO poor that he 
could hardly keep body and soul together ; that is, he 
would work a few days in bottoming shoes, and then he would 
go to work upon his invention. He finally brought OUt th 

idea successfully ; but, owing to his poverty, he was 
not able to buiid his pegging machine or introduce 
his invention." 

Now here was an invention confessedly of the first rank — a 
new and radical departure — which revolutionized the craft, 
and which ultimated in creating the very business of Messrs. 
Hyde & Storrow's clients. Manifestly here was one of proponents' 
fortunate originators of "a practical thing" (vide Storrow, page 
155), and, of course, one of which, by reason of its intrinsic 
merits, capitalists would promptly take hold of Was this Stur- 
tevant's experience ? No such thing. The inventor was, at this 
very point, at his wits end for money, and was compelled to 
mortgage a material portion of his invention for the means to 
perfect it, and pay the fees of the Solicitor and the Patent Office 
— to sell Ids birth right for a 7ness of pottage, so to speak. Now, 
at last, according to these gentlemen, he should have been 
master of the situation — but, so far from this having been the 
case, we are told that this enormous sacrifice '' was the only way 



ON THE PROGRESS OF INDUSTRIAL ARTS. 1/ 

possible for him to bring out his invention," and that when, on 
a subsequent occasion, he desired to patent his machine for 
making peg wood, he was still so hard 2ip that he was con- 
strained to again solicit pecuniary aid and obtain a loan of money 
from yet another man than the one who had first assisted him. 
And yet, so valuable were these inventions, that in after years, 
when the inventor desired to resume possession of his patents, 
it cost him ;^6o,ooo so to do ! (page 65). 

We are not advised of the time which elapsed — but probably 
none knew better than the clever attorneys of the Shoe and 
Leather Association, that the tiine is protracted a7id tedious in 
almost exact pivportion to the great7iess of the departure — and Mr. 
Sturtevant must have been exceptionally lucky — as we shall soon 
abundantly show. If he 'was out of deep waters at the end of 
four years, when gentlemen would have had the Treasurer of the 
United States call on him for the first installment of the proposed 
additional tax, or even at the end of nine years, when they 
would have extorted the second, pefzalty for adding to the j'epertory 
of labor saving arts. 



1.8 EFFECT OF PATENT GRANTS 



Proponents' Allegations Falsified 



BY THE 



ANNALS OF ALL GREAT INVENTIONS. 

The position taken by the advocates of the proposed changes, 
are conclusively falsified by the entire record of radical inven- 
tions, as may be seen by the few instances now cited as follows : 



WILLIAM LEE. 

Take the case of William Lee, the creator of the art of 
machine knitting. We see him in Elmore's immortal picture, 
watching his young wife plying her knitting needle as she held 
their babe in her lap, bravely earning the family bread ; Lee 
having been deprived of his Cambridge fellowship for the sin of 
wedding her ! Could not those movem.ents be performed by 
machinery? Patiently he worked at the problem, animated by 
admiration of his heroic wife, and may-hap by visions of gratitude 
from the nation of which he believed himself the inspired bene- 
factor; not unmixed with hopes of worldly advances to him and 
his. It was indeed a labor of love. We see him at last exult- 
ingly displaying the operations of the first knitting loom to his 
wife, and shortly after taking it to Windsor, not doubting that 
so wise a sovereign as Elizabeth would promptly grant him the 
desired patent, and give him the prestige of court favor. How 
were all these hopes dashed to the ground. Could he believe 
his ears — not a word of praise. A refusal of a patent for that 
which would '' deprive poor knitting women of bread," and a 
command to ''make none but silken hose." Desponding and dis- 
appointed he left his native shores, and England was deprived of 
one of her most lucrative industries — until long after poor Lee's 
death — when one of his apprentices brought the art back to the 
land of its birth. 



ON THE PROGRESS OF INDUSTRIAL ARTS. 1 9 

ARTHUR WOLFF. 

As to the adequacy of a short term of years to determine the 
remunerativeness of a patent and correlatively, the ability of the 
patentee, if a poor man, to meet a further demand upon his 
exchequer — Mr. John Farey, the most able and important of the 
witnesses examined by the British parliamentary committee of 
of 1829, testified as follows: 

Question. Do you consider that the term of fourteen years 
is sufficient in all cases ? 

Answer. By no means. I have stated before, that fourteen 
years profitable exercise of any invention is sufficient. The ques- 
tion is, when that profitable exercise will begin, and how much 
previous loss and outlay is to be made up. In some instances 
it begins from the first; in many instances it does not take place 
at all during the term of fourteen years. In the case of Mr. 
Wolff's invention of working steam engines by high pressure 
steam acting expansively either in one or in two cylinders, there 
was no profitable exercise of that invention for at least ten years 
out of the fourteen, and there was so much loss incurred at the 
first that the profit made during the last four years never repaid 
it (page 32). 

Yet this invention of Wolff's ultimately proved to be of such 
importance, that, in the estimation of Mr. Farey, "the exist- 
ence of deep mining in Cornwall even at that day, (half a century 
ago), depended upon it." Mr. Farey further stated, that ''the 
difference in cost between the quality of coals consumed by the 
engines then in use (which were all on Mr. Wolft^'s system), 
and by an equal force of engines, such as were in use before 
he went into Cornwall in 1813, would absorb the profits of all 
the deep mining that is now carried on in that important mining 
district (page 33). 

Here we have an invention of such consequence, that most 
extensive and valuable m.ining operations were dependent upon 
it, that was a bill of expense to the projector for the first ten 
years of the patent, and which did not repay his expenses during 
the lifetime of the original grant. Periodical fees had not at 
that time been adopted. Can gentlemen say that such fees 
would have constituted a just or even an expedient exaction in 
the case of Arthur Wolff? 



20 EFFECT OF PATENT GRANTS 

"DUD" DUDLEY. 

Although an earl's son — no better was the fate of Dudley, 
the founder of smelting by the use of anthracite coal, which 
cheapened iron to one-third its former price, and at the same 
time saved the forests of England from destruction. The great 
charcoal smelters of his day did not rest until they had ruined 
him. That Dudley's was no exceptional case is seen in the 
remark of Sir Hugh Piatt, another inventor of that day, who, 
writing in 1589, quaintly and truly says, "I have always found 
it myne own experience an easier matter to devyse manie and 
profitable inventions than to dispose of one of them to the 
good of the author hymself " 

The experiences of Dudley were a too true epitome of those 
of the great pioneers and discoverers the world over — for we 
read that after achieving mechanical success in his persevering 
efforts, he met a moi^e serious difficulty in ' ' the combifiation of ii^on 
masters to 7'esist his inventiofi.'' [So it seems that England, three 
centuries ago, had its prototypes of the railroad and shoe and 
leather associations of our day!] These powerful bodies "fas- 
tened law suits upon him and finally succeded in getting him 
ousted from his works at Cradley, but 

" Still his heart he kept, and toiled again," 

only to be again ruined by a mob of charcoal iron workers — 
instigated by the iron masters — who broke in upon his works, cut 
in pieces the new bellows, destroyed the machinery and laid the 
results of all his deep laid ingenuity in ruins. From that time 
forward Dudley was allowed no rest nor peace — he was mobbed 
by the ignorant, lawed by the rich iron masters of his neighbor- 
hood, and eventually overwhelmed by debts. Finally, rascality 
and ingratitude capped the climax. He was seized by his credit- 
ors, and held a prisoner for several thousand pounds. (Smile's 
Illustrated Biographies, page 75). 

HENRY OORT, 

One of the greatest of the long role of improvers of the iron 
manufacturers, was the unfortunate Henry Cort, of Lancaster, 
England. Flaving been reduced to bankruptcy in his enter- 



ON THE PROGRESS OF INDUSTRIAL ARTS. 21 

prises, his case was brought before Parliament by his heirs — but 
it is stated by Mr. Mushet that the evidence was not 
fairly taken by the Parliamentary Committee. That 
the petitioners were overborne by the audacity of a Mr. Samuel 
Homfrey, one of the great Welsh iron masters, whose state- 
ments are now conceded to have been altogether at variance 
with the known facts, and that it was under his influence that 
Mr. Gilbert drew up the fallacious report of the Committee. The 
illustrious James Watt, writing to Dr. Black, in 1784, remarks, 
** Mr. Cort has, as you observe, been most illiberally treated by 
the trade; they are ignorant brutes; but he exposed himself to 
it by showing them the process before it was perfect, and;they, 
seeing his ignorance of the common operations of making iron, 
laughed at and despised him ; yet they will contrive, by some dirty 
evasion, to use his process, or such parts as they like, zvithout 
acknowledging him in it. I shall be glad to be able to be of any 
use to him.'' 

Samuel Smiles, in quoting this correspondence, remarks: 
* 'Watt's fellow-feeling was naturally excited in favor of the plun- 
dered inventor ; he himself having, all his life, been exposed to 
the attacks of like piratical assailants." He adds, in his com- 
ments on this great inventor's ''sad history:" "Though Cort 
thus died in comparative poverty, he laid the foundations^of many 
gigantic fortunes. He may be said to have been, in a great 
measure, the author of our (English) modern iron-aristocray, 
who still manufacture after the processes which he invented or 
perfected, but for which they never paid him a shilling of royalty. 
These men of gigantic fortunes have owed much — we might say 
almost everything — to the ruined projector of the little mill at 
Fontley. Their wealth has enriched many families of the older 
aristocracy and been the foundation of several modern peerages. 
Yet Henry Cort, the rock from which these fortunes^were hewn, 
is already all but forgotten; and his surviving children — now 
aged and infirm — are dependent for their support upon the slen- 
der pittance wrung by repeated entreaty and expostulation from 
the State. The career of Richard Crawshay, the first of the 
great iron masters who had the sense to appreciate and adopt 
the methods of manufacturing iron, invented by Henry Cort, is 
a not unfitting commentary on the sad history we have thus 
briefly described. It shows how — as respects mere money-mak- 



22 EFFECT OF PATENT GRANTS 

ing — shrewdness is more potent than the inventive faculty, and 
business tact than manufacturing skill." (It will be remembered 
that the most vindictive opponent of the efforts to befriend the 
family of the deceased Henry Cort was Homfrey, the colleague 
of this same Richard Crawshay.) While the great iron masters, 
by freely availing themselves of Cort's inventions, have been 
adding estates to estate, the only estate secured by Henry Cort 
was the little domain of six feet by two in which he lies interred 
in Hampstead Church-yard. (Indust. Biog. p. 189.) Whole vol- 
umes might be filled with the dismal story of the pioneers of 
art. Its melancholy monotony presents our common human 
nature, alas, in one of its most discreditable phases. 



WILLIAM HARGREAYES. 

A kindred story to that of Cort, is found in the hard fate of 
Hargreaves. In Hargreaves' time, Lancashire was already noted 
for its spinning and weaving industries, the work being done by 
aid of the old-fashioned spinning-wheel and hand-loom. The 
scene lies in Hargreaves humble cottage, on one of the then wild 
hill-sides of that county. Stretched on the cleanly scrubbed 
floor lay young Hargreaves, chalk in hand. Suddenly he springs 
to his feet, and in reply to some feeble question of his wife, who 
had not risen since the day that she gave birth to a little stranger, 
exclaimed loudly that he ''had it !" and taking her in his sturdy 
arms in a blanket, the baby in her arms, he lifted her out and 
held her over the rude drawing upon the floor. This he explained, 
and she joined in a small, hopeful, happy laugh with his high- 
toned assurance that she should never again toil at the spinning- 
wheel, and that he should never again "play" and have his loom 
standing for want of weft. 

" Our fortune is made when this is made," said he, pointing to 
his drawings on the floor. 

'' What will you call it? " asked his wife. 

''Call it? What, and we call it after thyself, Jenny? They 
called thee Spinning Jenny afore I had thee, because thou beat 
every lass of Stanshill Moor at the wheel. What if we call it 
the Spinning Jenny?" The Spinning Jenny could spin twelve 
threads, instead of one, as by hand spinning. 



ON THE PROGRESS OF INDUSTRIAL ARTS. 23 

The populace broke the machine to pieces, and poor Har- 
greaves' heart at the same time. 

Arkwright, a common barber, caught the idea of Hargreaves, 
improved upon it, realized half a million sterling, and became Sir 
Richard Arkwright, whose son, in 1843, died the richest Com- 
moner in England. 

JAMES WATT. 

The sympathy of James Watt with his fellow-sufferer, Cort, 
has been spoken of Watt, himself, labored at his invention for 
many years, contending with many difficulties, but especially with 
the main difficulty of limited means. He had borrowed 
considerable sum^s of money from Dr. Black, to enable him to 
prosecute his experiments, and he felt the debt to hang like a 
millstone around his neck. It is stated of him that he was more 
than once on the point of abandoning his invention in despair. 
When, in consequence of pecuniary embarrassments. Watt's 
hitherto generous helper, Dr. Roebuck, was obliged to make a 
disposal of his own assets for the benefit of his creditors, he 
transferred to Mr. Matthew Boulton, of Soho, his (Roebuck's) 
entire interest [two-thirds] in Watt's inventions, and, although 
Watt had been at work at his engine for years, the value of the 
patent was deemed too small for enumeration among the assets, 
Roebuck's creditors not esteeming it zvorth one fartJiing ! Seven 
tedious years elapsed even after the grant of his patent, before 
he was himself sufficiently satisfied of his ability to undertake 
to supply effective engines, and even then the harder task remained 
of persuading the great mine proprietors to avail themselves of 
the boon. A tax, four years after his grant, such as proposed to 
be engrafted on the law in this country, would have caught the 
inventor of the steam engine in the very darkest hour of his 
embarrassments, and would quite possibly have deprived him of 
the patent. And it is worthy of remark, that Watt's invention 
at that time was amenable to all the charges brought by Mr. 
Storrow, against a patent which should be " killed." It had 
not * ' at once taken its place among the arts as a practicable 
thing," nor had " others been incited to develop it to a practical 
and pecuniarily profitable application." It did not, according to 
Judge Storrow's criterion, "constitute a progress," and ''the 
purpose of the law [according to Storrow] was not satisfied." 



24 EFFECT OF PATENT GRANTS 

It would not [according to Storrow] have '^ promoted the prog- 
ress of the useful arts," that such a patent "should live merely 
to hinder, and not to constitute progress," Nay, more, there 
were able advocates of that day, who, for adequate consideration, 
did, voluminously and at sore waste of Watt's precious time and 
delicate health, propound and enforce arguments almost identical 
with those now presented.. Yet this was the steam engine, 
struggling for recognition in the hands of its most illustrious 
projector! 

In the face of this, striking commetary on their propositions, the 
attorneys of the Boston Shoe and Leather Association would have 
the Committee believe ^'the profits of a patent that is worth 
preserving" will, as a matter of course, enable the owner, "after 
a lapse of a few years," to pay the proposed additional fee. 
(See argument of Chauncey Smith, Esq., page 280.) It is incon- 
ceivable that one so learned in invention as Mr. Smith, should 
be ignorant of the fact that viventions of the mos t radical, and 
therefore iniporta^tt class, are ainoiig the slowest to reach public and 
profitable recognitio7i. 

It cannot be devised that this was the case with Watt's engine. 
Indeed, Watt's biographer asserts that the extension of the 
original term of his patent by Parliament, alone saved the illus- 
trious inventor from bankruptcy. Yet gentlemen would have 
visited Watt twice during his heroic struggle, and have sought 
to "kill" the patent, "the profits of which," not ''enabling 
him to pay the small fee," afforded the true test (according to 
Storrow), that it was not '' worth preserving." 

Did space permit, i^emunerativeness in its early stages could be 
shown to be the poorest possible criticism of tJie value of an inveittion. 

No unprejudiced person can read the story of industrial pro- 
gress of a century past, and deny that it is, in the case of the 
original projectors, an all but unvarying narrative of the most 
disheartening, and, for a long time, profitless struggle; for, 
where the invention is in the nature of a radical departure from 
established usage, there is added to the always manifested 
indifference and even hostility of the community, the embar- 
rassments growing out of the fact that the project is so much in 
advance of the mechanical capabilities of the age, that it is with 
the greatest difficulty it can be executed. The case of Watt has 
been cited, and will be further alluded to, because, while it is 



ON THE PROGRESS OF INDUSTRIAL ARTS. 2^ 

one that the most specious pleading dare not ignore, it is, at the 
same time, a fair type of its class. Now Samuel Smiles relates 
that Watt, when laboring upon his invention at Glasgow, 
was baffled and thrown into despair by the clumsiness and 
incompetence of his workmen. Writing to Dr. Roebuck upon. 
one occasion, he said : " You ask me what is the principal 
hindrance in erecting engines. It is always the smith-work." 
Watt's first engine was made by a ''whitesmith," of hammered 
Iron, soldered together ; but the workman having used quicksil- 
ver-amalgam to keep the cylinder air-tight, the mercury dropped 
through the inequalities into the interior, and, to use the inven- 
tor's own language, ''played the devil with the solder!" Watt's 
next cylinder was cast and bored at Carron, but it was so untrue 
that it proved next to useless. The piston could not be kept 
steam-tight, notwithstanding the various expedients which were 
adopted, of stuffing it with paper, cork, putty, pasteboard and 
old hats. Even after Watt had removed to Birmingham, and 
had had the assistance of Boulton's best workmen, then reputed 
the most skillful in England, the performance was so unsatisfac- 
tory, that Smeaton, on witnessing the engine at work, expressed 
the opinion that, notwithstanding the excellence of the inven- 
tion, it could never be brought into general use, because of the 
difficulty of getting its various parts manufactured with sufficient 
precision. Great indeed, must have seemed the obstacles to 
success, to have elicited this remark from the designer and 
builder of the Eddystone light-house! 

The experiences of Watt afford a striking illustration of the 
difficulties that beset an invention that is in advance of the aee. 

o 

Watt's devices ante-dated by many years, the advent of the great 
iron-working machines of our time, the planing and boring, 
the turning and slotting and drilling machines of a modern ma- 
chine shop had not made their appearance. The "white- 
smith's" art, as the term then went, fell far short of the nice 
and, at the same time, large requirements of the steam engine. 
Even after the grant of his patent. Watt struggled for seven 
tedious years with the most adverse circumstances, of which the 
lack of mechanics and of mechanical appliances were the least 
vexatious. Watt and his original capitalist were bcth bankrupt. 
Later, when Watt had obtained the powerful association of 
Boulton, and had so systematized the manufacture as to feel able 



:26 EFFECT OF PATENT GRANTS 

to undertake to supply engines that could be relied upon for 
the deep mine pumping for which they were designed; he found 
it almost impossible to secure recognition from the great mining 
proprietors whose patronage was deemed necessary for crown- 
ing his IcTng toil with that pecuniary success which alone 
^vould justify the immense sacrifices of those weary years. 

Unwilling to abandon to a caprice, their victory over the ele- 
ments, the manufacturers fell upon the desperate expedient of 
making these Croesuses a present of the steam engine; the 
manufacturers contracting, at their own expense, to make the 
necessary changes, to remove the Newcomen engines, to put 
in those of the Boulton and Watt construction, and finally to 
remove the new and replace the old engines, if required ; all at 
their sole cost! For all this the only pay demanded by the 
manufacturers was the saving in fuel, effected in five years, over 
the engines previously employed. 

Thus did these lordly proprietors of drifts and adits get, for 
absolutely nothing, the machines that saved some of them from 
bankruptcy. But for Watt's fortunate association with a man 
of such exceptional ability as Matthew Boulton, the public might 
have paid for its indifference and obtusity by an indefinite post- 
ponement of the priceless boon of the steam engine ; for, although 
highly ingenious minds had long been and were still at work on 
the problem, who shall estimate the loss of the transcendant 
capacities of James Watt? 

JAMES NASMYTH. 

The invention of the steam-hammer is another case in point. 
This device Tomlinson declared to be ''one of the most perfect 
of artificial machines and noblest triumphs of mind over matter 
that modern English engineers have yet developed. Yet this 
great inventor was utterly unable to secure a patent, for lack of 
means to pay the — to him — prohibitory fees of the British office ; 
and the patent was only saved to him, at the last moment, by 
the generosit)^ of a relation, who advanced the required funds. 
So that the originator of the steam-hammer came very near 
losing his patent, or rather failing to get any patent at all. His 
biographer relates that, notwithstanding strenuous and persistent 
efforts through a number of years, Nasmyth could not induce 



ON THE PROGRESS OF INDUSTRIAL ARTS. 2/ 

any iron master to put one up, and he was destitute of means 
necessary to erect one or even to patent the invention. He 
alone appreciated its great capabiUties, and, so far as appeared, no 
one else thought it worth one farthing. And yet the opportu- 
nities of Nasmyth were better than many a poor inventor, for 
he was junior partner in a small iron mill. Seeing himself on 
the brink of losing his property in the invention, he, in despera- 
tion, applied to and, wonderful to relate, obtained from a relative 
the amount of the patent fee — at that time about ;^28o. Here 
we see the high English fees operating to nearly close the doors 
of their patent office against an invention of the first rank — dis- 
criminating, not against triviality of invention, but against impecu- 
niosity of the inventor. An invention which made possible the 
great ocean steam ships of our day, and to which his country 
owes so much of her present wealth and prestige — -was saved to 
the inventor by the accident of England possessing a man willing 
to risk ^280 on a poor relation ! 

JOHN HOUGHTON. 

The history of the invention of the saw mill is to the same 
import. Many of us can remember seeing, in thousands of forest 
clearings, great logs of walnut and other valuable timber rolled 
into piles to be burnt. It seemed a sad waste. Now the'portable 
saw-mill has changed all this, and has enabled the utilization of 
millions of dollars' worth of valuable lumber. We are told that 
the reputed inventor of the common hand-saw was so highly 
esteemed by the ancients, as to have received divine honors after 
death ; but the history of invention makes it but too probable 
that he was persecuted unto death. 

The story of the saw-mill, while it enforces the point of this 
argument, affords a striking illustration of the gross'inexpediency 
of oppressing inventors. The first saw-mill in England was 
erected in 1663, but was shortly abandoned in consequence of 
the determined opposition of the hand-sawyers. Fully three 
generations came and went before the second saw-mill was set 
up, near the same spot, in the year 1767, by John Houghton, a 
London timber merchant. But the mill was scarcely erected 
when a mob, composed, doubtless, in part of the worthyj^descend- 
ants of the first, assembled and razed the mill to the ground. 



28 EFFECT OF PATENT GRANTS 

By this time, however, public opinion no longer tolerated mob 
outrage. The principal rioters were punished, and the proprie- 
tor, having been indemnified, re-erected his mill, which was there- 
after suffered to work without molestation. By the violence of 
a few blind and vicious fools, the nation was thus deprived of the 
inestimable boon of the saw-mill for more than a century, to say 
nothing of the relatively insignificant, but still considerable, loss 
of the two mills thus wantonly destroyed. 

A late author remarks: "Even in comparatively recent periods, 
new inventions have had to encounter serious rioting and machine- 
breaking fury. Kay, of the fly-shuttle, Hargreaves, of the Spin- 
ning Jenny, and Arkwright, of the throstle-frame, all had to fly 
from Lancashire, glad to escape with their lives. Even improved 
agricultural implements, capable of largely increasing the yield 
of bread-stuffs, have had the same opposition to encounter, and, 
in our own time, bands of rural marauders have gone from farm 
to farm, breaking drill-plows, winnowing, threshing, and other 
machinery; not perceiving that, if their policy had proved suc- 
cessful and tools could have been effectually destroyed, the human 
race would have at once been reduced to their teeth and nails, 
and civilization summarily abolished. 

The author of Industrial Biography relates how Mr. Robinson, 
a Dublin gentleman of spirit and enterprise, was desirous of giving 
Irish industry the benefit of manufacturing its own machine-made 
nails, then wholly imported from England, and employed the 
since celebrated William Fairburn an entire summer, to erect 
suitable machinery. All this expense and risk proved of no 
avail; not from any deficiencies in the apparatus, but from 
the proprietor's inability to brave the opposition and threats of 
violence of the Trades Unions, then all powerful in Dublin. The 
machinery was never set to work; the nail making trade left 
Ireland, never to return, and the Irish market was thenceforth 
supplied entirely with English made nails. The Irish iron man- 
ufacture was ruined in the same way ; not through any local 
disadvantages, but solely in consequence of the prohibitory regu- 
lations enforced by the workmen of the trades unions. 

BERNAKD PALISSY. 

Bernard Palissy was a skillful painter on glass who, in the 
year 1539, went to pursue his calling in the town of Saintes, 
in France. 



ON THE PROGRESS OF INDUSTRIAL ARTS. 29 

"Matters went on very well for some time, until Palissy, now 
having been two years at Saintes, saw a cup of some sort of 
composition, very beautifully turned and finished, and became 
immediately possessed with the idea of making a vase of similar 
construction." 

Under the influence of this idea, he abandoned the employ- 
ment which had before supported his family, spending all his 
time in kneading earth, and afterwards baking it. But his first 
endeavors were unfortunate; and poverty, with all its horrors, 
entered his house. No matter; Palissy struggled on, sustained by 
a hope that, although a beggar to-day, to-morrow he may possess 
more gold than his strong box will hold. But many to-morrows 
came, and no gold; his wife complained bitterly, and his child- 
ren, their eyes streaming with tears, clasped their thin hands and 
implored him to resume his old profession of painting on glass ; 
by the profits of which they had lived so comfortable; but all in 
vain. Twenty years passed in this manner, Palissy remaining 
faithful to that one idea, although every one around him laughed 
at him and treated him as if he were insane, and some even 
went so far as to accuse him of sorcery and forgery. In the 
midst of all this, an apprentice, who had been with him a long 
time, suddenly declared his intention of leaving him, and claimed 
his wages. Poor Palissy, stripped of every thing he ever pos- 
sessed, is obliged to give him a part of his own clothing. Left 
to himself, he then directed his steps to his oven, which was in 
the cellar. Alas! it wanted wood! What could he do? He 
ran into the garden and pulled down all the trellis work, and 
the fire was soon blazing. Palissy, beside himself with anxiety, 
took one article of furniture after another and threw them on the 
fire, in spite of the entreaties of his family; and, at last, success 
crowned his efforts. A long cry of joy echoed through the 
vaulted cellar, and made itself heard through the whole house; 
and when his wife came running down, expecting to find a 
raving maniac, she saw her husband standing motionless, his 
eyes fixed in amazement on a piece of pottery of splendid colors, 
which he held in both hands. 

The genius of invention, a long time deaf to his cries, had at 
last laid the crown of success upon his head. Success, that 
magic sound to the ear of genius ; Palissy had the faith which 
never deceives. 



30 EFFECT OF PATENT GRANTS 

The rumor of his discovery spread far and wide. Poverty 
fled from his house. Henry I. sent for him to Paris, and gave 
him lodgings in the Tuileries; it was here that he obtained a 
patent for the inventions oi Royal rustic pottery of all sorts. He 
was now known by the name of Bernard of the Tuileries. 

A skillful workman, Palissy also understood medicine, paint- 
ing and sculpture, handling equally well the pen and pencil, and 
possessing a depth of thought never existing but in a man of 
genius. 

The edict against the Protestants, published in 1559, by 
Henry HI. at Ecouen, did not spare Palissy. Professing the 
reformed religion, he was dragged to the Bastile, where he died 
in 1589. Henry HI. went to see him in prison, and told him 
that he was " afraid he would be obliged to leave him in the hands 
of his enemies." 

"You have said repeatedly, sire, that you pity me," replied 
Palissy ; * ' but I sincerely pity you. ' Be obliged P that is no royal 
expression; I will teach you a kingly language. Nor you, nor 
all your people shall oblige me to bend my knees before statutes; 
No! I will^die first!" 

JACQUARD. 

Jacquard, of Lyons, born in the humble ranks of workmen, 
invented the admirable loom which bears his name, and which 
will always keep him in remembrance. 

His father was a master-workman in silk, at Lyons, where, 
in the year 1752, the son was born. The sight of one of Van- 
canson's wonderful machines, revealed to him the nature of 
his own genius. His first endeavors were received with sneers 
and jests; a common fate with men of talent. But obstacles 
only redoubled Jacquard's industry. Supported by the aid of 
several independent workmen, he succeeded in establishing 
some improvements of his own invention, for winding and 
weaving silk; but here new difficulties, new impediments, and 
we may also say, new dangers threatened him. "A second 
Galileo, says one of his biographers, Jacquard was persecuted 
by his fellow citizens, who, instead of encouraging him, loaded him 
with reproaches, and even went so far as to threaten his life. They 
looked upon him as an ambitious character, whose object was 



ON- THE PROGRESS OF INDUSTRIAL ARTS. 3 1 

to injure his fellow workmen, and to ruin labor and bring poverty 
upon their heads by his invention; so that the unfortunate man, 
terrified and discouraged by the treatment he met with, and 
despairing of being able to overcome their prejudices, shut up 
his admirable mechanism in a garret, and waited till more for- 
tunate days should give him an opportunity of meeting with 
justice." 

The above statement is strictly true. The new invention was 
publicly destroyed, and the life of the inventor three times en- 
dangered. The great advantages attendant upon this important 
discovery were obstinately overlooked; for no one had any 
regard to the diminution of hands employed, to economy in 
workmanship, or to the alleviation of the sufferings of some of 
the laborers, which, in one process was very severe. 

DANIEL LAMSON. 

In the year 1870, appHcation was made to the Commissioner 
of Patents, by Emily J. Lamson, for extension of the term of the 
patent granted to her late husband, Daniel Lamson, for a 
machine for notching hoops. 

The Examining Board reported that ''the invention was new 
when patented, and a great stride in advance of the pre-existing 
machines. It is unquestionably valuable. The inventor, who 
was a poor man, was diligent in attempting to introduce his 
machine, until the breaking out of the war, when he enlisted in a 
Massachusetts regiment. He was killed at Fredericksburg." 

About the time that Daniel Lamson's life was going out in 
trenches of Fredericksburg, forfeited to save that of his govern- 
ment; proponents would have had that same government have 
presented the widow with a bill of fifty dollars for his public 
services as an inventor, or, in default of payment, forfeit the 
patent. 

WILLIAM HICKS. 

William Hicks was the inventor of an improvement in breech- 
loading fire arms which the Board of Examiners in Chief re- 
ported to be " of great novelty and utility." It was " extensively 
adopted, more than 200,000 weapons having been made em- 
bodying the invention," but as this extensive manufacture was 



32 EFFECT OF PATENT GRANTS 

wholly by very wealthy and defiant infi-ingers, and he was poor, 
it only added to his embarrassments. The Board of Examiners, 
in adverting to these circumstances said " he was deterred, by his 
want of means, from engaging in litigation with the infringers, 
who were wealthy, and would spare no means to defeat him to 
whom they had refused to account in a peaceable manner." 
The Board further say "there is no doubt that the Hicks' in- 
vention afforded the foundation for all the improvements used by 
the infringers [who were also the opposers of the extension] 
that there can be no question but that it has proved of great 
value, and that the applicant has entirely failed of receiving any 
reward from it, without fault on his part." 

The patent of William Hicks was not efficient in ''stopping" 
these users of his invention, notwithstanding that they do not 
appear to have been ^' iinconscious users.'' (See Storrow, argt., 
p. 156.) 

OWEN DORSEY. 

Owen Dorsey was the originator of a new and extremely val- 
uable departure in reaping machines. Acting Commissioner 
Hodges, in allusion to this improvement, said: 'The device 
was the first to achieve the important and long sought desidera- 
tum of automatically separating each successive gavel from the 
remaining grain, and of sweeping it out of the way of the team 
when they come round again." The device is defined, by the 
inventor, to be "a revolving rake whose arm is so pivoted to the 
post as to give the operator power to direct the path of the rake 
at will." 

Commissioner Hodges, in his ruling on this case, said: ''The 
vast extent to which the different modifications of machines em- 
bodying the fundamental principles of Dorsey's have gone into 
use, and the exclusive possession they have taken of the market, 
leave no room for hesitation on the point before us. The inven- 
tion must be classed among the leading ones of the country and 
the age. 

"For the boon he has thereby bestowed upon the country, 
the patentee deserves an ample — an abundant remuneration. He 
is one of those favored few whom his fellow-citizens love to 
honor with such a liberal competence as shall encourage others 
to follow in his path. This has not been the result in his case. 



ON THE PROGRESS OF INDUSTRIAL ARTS. 33 

As his patent is about to expire, he presents himself in a condi- 
tion but Httle above impoverishment. He is not suspected of 
heedlessness, extravagance or wastefulness. There has been no 
want of diligence in introducing his invention into general use." 
Had this useful citizen — who would seem, like too many of his 
tribe, to have lacked the business faculty possessed in such per- 
fection by lesser men — been unable to meet one of the proposed 
periodical fees, the case would have illustrated Mr. Storrow's 
* 'safe test, " of 'Virtual abandonment," and have operated "tO 
kill the patent." 

HENRY YOELTER. 

Henry Voelter was the inventor of the mechanical production of 
paper-pulp from wood, an invention that, by reducing the cost of 
converting wood- fiber to paper-pulp to less than one-half of that 
prepared by chemical agency, and less than three-tenths of pulp 
prepared from rags, revolutionized the manufacture of paper 
throughout the civilized world. Duncan, acting Commissioner, 
in his decision in favor of extending this patent, dated 26th 
August, 1870, wrote : "The invention is radical in its character ^ 
and clearly proved to be of great value and importance to the 
public. To its full development and introduction, the inventor 
has given the best years of his life, laboring therefor with an 
energy, and zeal, and a singleness of purpose that find a parallel 
only among the great inventors whose labors have become historic. 

"The costly experiments necessary to perfect the invention, 
requiring the employment of a retinue of mechanics, clerks, 
draughtsmen, and engineers, were continued through a space of 
ten years, and consumed the larger part of the inventor's time ; 
and when the invention was so far completed as to warrant the 
taking of patents upon it, a much larger expense was incurred in 
advertising it, and exhibiting it at international and other exhibi- 
tions, in constructing and operating experimental machines, and 
combating tJie prejudices of the public [the trade] to the use of the 
material fimiis he d by the nezu process. 

"Yet, the inventor persevered, in spite of every obstacle and 
discouragement, devoting nearly all his time and energies, after 
the grant of his patent, to the success of the invention ; sacrificing 
health, and freely investing a large fortune in the enterprise. 

"As the result of his lavish expenditure, and these constant 



34 EFFECT OF PATENT GRANTS 

and untiring Ishors, prejudice at last gives way, and the invention 
begins to be duly appreciated, when the inventor finds himself, 
close upon the expiration of the patent, with a balance-sheet 
showing a net loss of more than $y 0,000.'' 

After a statement of the value of the invention, as compared 
with the pre- existing processes of preparing paper-pulp, the 
Commissioner says: "The real value of the invention is to be 
estimated in millions ;" and that " It is to be regretted that the 
man who, by years of study and costly experiment, by the exer- 
cise of a sublime faith, and by active and persistent efforts, has 
given the world so valuable an invention, should [under the 
extension] have no larger interest in it at a time when the public 
appreciation of it might amply compensate him for the ingenuity 
displayed, for his many trials, and for his unstinted expenditure 
of time and money. 

While it, perhaps, may be asserted that the man who could 
beggar himself, and spend a fortune in developing an invention, 
would not be likely to let the patent lapse by non-payment of 
the, to him, paltry tax of ;^I50: it may, nevertheless, be enquired 
why, under the circumstances, he should be taxed at all? 

LAFAYETTE LOUIS. 

Lafayette Louis was the inventor of a Tremolo Action in 
Melodeons, for which he obtained a patent November i8th, 1856. 
The patentee being dead, and the patent being about to expire, 
his widow, E. C. Dora Louis, made application for extension of 
the patent. The then Commissioner of Patents, after hearing 
the facts and arguments in her behalf, decided ''that this inven- 
tion was new and useful ; that the receipts of the inventor there- 
from were less than his expenditures, and that his diligence was 
remarkable." He says : " The statement of the widow upon this 
point is pathetic and worth reproducing." She stated that "after 
the grant, her husband devoted his time almost exclusively to 
introducing his invention to the public. His experiments were 
numerous and very costly, and so exhausted his means, that he 
was unable to embark in the manufacture himself, although this 
had always been his intention, from the time that he obtained 
his patent. He, therefore, made repeated efforts to get partners, 
who would furnish the necessary funds for manufacturing ; but his 



ON THE PROGRESS OF INDUSTRIAL ARTS. 35 

efforts were only fraught with failure, and he was never able to 
secure any one who would so manage the patent as to bring him 
an income. He frequently gave the patent papers as collateral 
security for small sums of money, paying thereon exorbitant 
interest, in order to obtain the means of hving. In addition to 
what her husband was able to obtain in this w^ay, and by the 
limited time that he devoted to his profession, the petitioner also 
earned money by singing and reading in public, and by various 
other expedients assisted in their joint maintenance; and she also 
advanced him money, obtained by her personal exertions, for 
use in working the patent. Her husband devoted his life, tal- 
ents, and every dollar he could get, to putting the tremolo 
improvement before the public in such a manner as to satisfy all 
lovers of music in regard to its excellence, novelty, and durabil- 
ity, believing always that, in time, he would reap his reward. 
That to the development and introduction of the invention was 
devoted nearly all that she and he;- husband, both, earned, bor- 
rowed, hired, or begged, during the life of the patent." 

THEODORE T. WOODRUFF. 

This inventor was, after an exhaustive investigation, accred- 
ited by the United States Patent Office — the only public body 
competent to pass judgment on such questions — as **the real 
creator of the modern appliance known as the sleeping-car (com- 
monly known as ''Pullman" car), an invention that contributes so 
largely to the comfort and convenience of the traveling public: 
and not only is it to Theodore T. Woodruff that the world is in- 
debted for the conception and embodiment of the device, but for 
its introduction into general use. 

As in the case of almost every radical invention, the public 
were slow to appreciate its advantages; and great difficulties were 
experienced in negotiations with railroad corporations. In view 
of the facts developed by the record, it is no exaggeration on 
his part when he says that he "fought the invenrion into 
use." He not only produced a valuable invention, but he may 
be said to have created a market for the same. 

"It can hardly (says the Commissioner) be said that the sum 
received by him is an adequate remuneration for an invention of 
such immense public value and importance; and it is difficulty 



36 EFFECT OF PATENT GRANTS 

Upon the facts presented, to see wherein the failure to receive 
due compensation is attributable to neglect or fault on his part. 

*' There does not seem, in the present case, any force in the ob- 
jection that the extension will operate oppressively upon the 
public. The protection afforded the inventor has not caused any 
deterioration in the character of the pre-existing railroad car, nor 
prevented marked improvements therein. Every person is at lib- 
erty to choose between the sleeping-car on the one hand, aitd other 
accommodations in ?io zvise inferior to zuhat woidd have been within 
his reach had the sleeping-car never beeii called ifito existence. If 
he chooses the latter it is because, by reason of the additional 
comfort and convenience attending it, he can afford to pay the 
additional price charged; and finds it profitable to himself so to 
do. He ought not then, to complain that the meritorious in" 
ventor should also derive profit from the same source, nor ask, in 
order that he may secure the enjoyment of a luxury at a reduced 
price, that the inventor's income from that source which his own 
genius has originated, shall terminate before he has received an 
adequate remuneration for the benefit which he has conferred 
upon the world." 

The instances might easily be multiplied a hundred fold : 
those cited are not in the least degree, or in any respect, 
exceptional, but fairly illustrative of what any one may find for 
himself who will take the trouble to look into these annals 
of the gifted and devoted men, who have led the van and borne 
the brunt of the battle of material progress of their race — too 
often, alas, to perish in the fray! Little does he know, who is 
intent to pursue the beaten track of conventional life, of the 
doubts, the fears, the perplexities, the embarrassments that 
beset the path of him who essays to explore and open up new 
avenues of thought and action. Arduous enough would be his 
task if it ended with his conquest of the occult forces of nature; 
but difficult and baffling as that task often is, it is an easy and 
grateful toil in comparison with what falls to his lot in the inevit- 
able struggle with self-satisfied obtuseness, charlatanry, preten- 
sion, and greed, that confront him at every step of his way to 
the final goal — not always attained — of recognition and success. 
Many inventions of high intrinsic merit, and great value to man- 
kind, fall short at first, and often for years, of practical adoption, 
either because the community is not educated to their level, or 



ON THE PROGRESS OF INDUSTRIAL ARTS. 37 

because artificers cannot be found capable of the nice and special 
work required. Such, it has been seen, was the experience of 
James Watt, of '*Dud" Dudley, of Henry Cort, and, in a word, 
of almost every originator of devices of like radical stamp. 

WILLIAM WOODWORTH. 

The revolution in the production of flooring boards, by the 
invention of William Woodworth, is within the memory of men 
still in the vigor of business life. Of this important invention, 
Mr. Seth C. Staples remarked that *'it introduced a new era. 
The process of planing, tonguing, and grooving boards was well 
known to mechanics before, to be tedious and laborious. Appren- 
tices were set to planing, and even then it was difficult to get 
the board of precise dimensions throughout. Then there was 
one particular tool used for tonguing, and another for grooving 
[where such refinement of structure was resorted to; — it was 
generally dispensed with, on account of the trouble and cost.] 
Altogether, a smart man could, perhaps, prepare from ten to 
fifteen planks per day. Most mechanics did not believe it possi- 
ble that the work could be done in any other way. They would 
not buy the right of Woodworth. He was obliged to erect a 
machine [to demonstrate the working efficacy of his device.]" 

Even in the early years of this invention, it was conceded that 
it would face, tongue, groove, and gauge forty boards, while the 
most skillful carpenter could do one ; and that it would do it 
more exactly, and would run all day and all night long, if neces- 
sary. In fact, it was instrumental in causing the use of tongued 
and grooved flooring — with all its manifold advantages of absolute 
accuracy, air-tight joints, secret-nailing, and so forth — to become 
of universal, instead of extremely rare and exceptional application. 

Now, what happened to William Woodworth, is told in the 
touching narrative of his son, William W. Woodworth, who 
says that his father, ''while engaged in perfecting his discovery, 
was obliged to apply for pecuniary aid ; and procured assistance 
from James Strong only by the sacrifice of an assignment of one- 
half his right to the invention. That, after obtaining the patent, 
Woodworth and Strong were obliged to incur niinoiis expenses, in 
bringing their machine into public notice and favor. That, 
embarrassed by the opposition of builders, and especially of 



38 EFFECT OF PATENT GRANTS 

joiners, as well as with debts and with heavy losses by fire, the 
work, as was supposed, of incendiaries instigated by enemies; 
and threatened with litigation; they were forced to enter into 
ruinous compromises, which entailed great difficulties in subse- 
quent efforts to dispose of their franchise. Such was the condi- 
tion of the enterprise, when, on the 9th of February, 1839, ^^^ 
inventor, Woodvvorth, died in the city of New York, '^ in poverty I' 
just eleven years after the grant of his patent. On this pubhc 
benefactor and real martyr, proponents, who are the friends of 
the inventor, would have had his country twice called for collec- 
tion of its little bill. Well might the inventor say, like one of 
old: ''If this be my country's justice, it is like Roman grati- 
tude ; the recipient sinks beneath its weight ! " 

JEARUM ATKINS. 

Jearum Atkins was one of the most ingenious and unfortunate 
of those architects who have builded the temple of our national 
prosperity upon such a sure foundation. A native of the Green 
Mountains, he, while yet a boy, displayed remarkable mechan- 
ical faculty, and, despite poverty and limited facilities for acquir- 
ing knowledge, he dived deep- into mathematics, and made ex- 
perimental researches in physical law. While still a young 
man, he was thrown from his wagon, and received spinal injuries 
which laid him helpless upon a bed of pain, from which he was 
not destined to rise for twenty-four long years. While thus 
stretched upon his back, with his drawing-board suspended 
above his face, he conceived and worked out a vast number 
of inventions. The drawings illustrating them are marvels of 
accuracy and neatness. 

" Among the inventions he made and perfected is the Auto- 
matic Sweep-Rake for harvesting machines, for which he re- 
ceived a patent December 21st, 1852. Considered as a piece 
of ingeniously elaborated mechanism, this device has few equals 
in the whole range of mechanics. Considered as a machine for 
the accomplishment of a useful purpose, it has not been sur- 
passed by any of its successors in the field of improvement 
which its projector was the first to open and explore. 

This device presents a rake, operating from an upright pivot 
or shaft, with a continuous rotary movement, and deriving its 



ON THE PROGRESS OF INDUSTRIAL ARTS. 39 

motion from the continuous motion of the driving-wheel. In 
this regard it is claimed to be the progenitor of the revolving 
sweep-rakes, which have since superseded all other automatic 
devices for removing the cut grain from the platform. It has 
been so regarded by such men as Charles Mason and Elisha 
Foote, both ex-commissioners of patents, and both men of 
great ability. 

During the first years of the patent this machine went into 
extensive and successful use. 

The history of this invention gives a striking illustration of 
the usual fate of him who opens new paths, and bestows upon 
his country new ideas. 

Being bed-ridden, he was forced to trust the execution of his 
business to other hands. John S. Wright, of Chicago, an able 
but eccentric man, purchased an interest in the patent, and had 
built a large number of machines. The success of these ma- 
chines and the favor with which they were received during two 
years, turned his head and he determined to seize fortune at a 
single grasp, so he contracted with the builders for the manu- 
facture of several thousands of these harvesters, all of which 
were readil}^ sold, and nearly all of which came as readily back 
upon his hands, because of bad material and bad workmanship, 
— that ruined him. 

The money he had promised to pay for an interest in the 
patent was not paid. His ability to earn more, by manufacturing 
the machines, was destroyed by his failure; for the public never 
take the trouble to discriminate between the invention and the 
specific causes of inefficiency. If the new device falls short of 
their expectations, it and all concerned in its production are 
stigmatized as "humbugs." The reputation of the machine 
was injured, the chances of enlisting other capital were de- 
stroyed, and Wright refused to relinquish the interest which he 
held in the patent. 

That was the condition at the time when a second installment 
of the proposed fee would have become due from Jearum Atkins 
— lying there now A. D. 1861 — these ten or more weary years, 
prone on his back, in his little home in Chelsea, Illinois — day 
by day and year by year, bravely and with infinite patience — 
working out the conceptions of his teeming brain! 



40 



EFFECT OF PATENT GRANTS 



The patent doubtless would have lapsed if additional fees had 
been imposed upon him at that time. 

Perhaps the inventor would have been no worse off than he 
is; because, poor and crippled, he has been unable to realize 
any further benefits from it ; but the facts of his invention and 
his misfortunes remain. The genius of his invention pervades 
thousands of these machines, without which our fields could 
not be harvested nor our granaries filled. 



S. S. ALLEN. 

The experience of this inventor affords another striking illus- 
tration of the confusion oft-times resulting from confounding an 
invention with mechanical parts with which it may happen — 
for the time being — to be associated, and imputing to it faults of 
material and construction for which it is not answerable and 
with which it has no connection. 

The object and effect of the Allen improvement was to remove 
the ''side-draft," which was one of the greatest practical diffi- 
culties in the harvesters of that period, 1857. The case is per- 
tinent to the present enquiry in several aspects, for example : 

As illustrating the distinction between the invention and any 
specific machine which happened — for the time beings — to em- 
body it, a destinction very often overlooked, and which even 
a majority of the Board of Examiners in Chief, acting in this 
case, seem to have misunderstood. 

The Commissioner (Leggett) said ''the inventor evidently 
failed to make a first-class machine, but I am not so clear as the 
majority of the Board of Examiners in Chief appear to be, that 
his failure was from the fact that he did not understand the full 
scope of his patent. The machine to which he attached his 
improvement was not the best and most popular, and there is 
no evidence that their failure to give satisfaction was chargeable 
in any degree to the patent, or to any misunderstanding or mis- 
application of the patented improvement." 

If the Commissioner here took the just view, then Judge 
Storrow's criterion is too rigorous, where (as on page 155) he 
requires that "the invention shall at o?ice take its place in the 
arts as a practical thing," or that it shall "so clearly embody 



ON THE PROGRESS OF INDUSTRIAL ARTS. 4 1 

a great step forward that the inventor or others are incited to 
develop it to a practical or pecujiiarily profitable application." 

The case of Allen is further pertinent to the present enquiry 
as illustrating the, alas! too frequent lot of poverty and em- 
barrassment of the inventor of a radical and intrinsically valuable 
improvement, and the consequent especial liability of patents of 
this class to become forfeit under the proposed fees. 

The Commissioner says : ^'The case is one of co^nmon occurrence. 
Allen spent much time and money in developing and patenting 
an invention which is conceded to be of great value. He made 
strenuous efforts to recover compensation for his time and ex- 
penditures, but up to the time of his death he had not done so. 
By reason of his patent he died insolvent. His executors did not 
comprehend the value of his patent, and did not feel justified 
in making further expenditures upon it." Would the case of 
.widow Allen have been a proper one for application of the 
proposed additional tax? 

BENJAMIN F. RICE. 

In the matter of the application of Roxanna Rice, executrix 
of Benjamin F. Rice, deceased, for extension of the patent 
granted to said Rice, April 28, 1857, for improvement in machines 
for making Paper Bags. 

In passing upon this case, the Commissioner said: ''The 
invention is proven to be of great value, saving ten or twelve per 
cent, of the cost of mianufacturing, over any other machine;" 
and further remarks : ''It often happens that the life of a patent 
is nearly expended before the inventor is able to make the public 
so appreciate the value of the invention, as to make it in any 
degree remunerative to him. In other cases, the inventor is so 
impeded and embarrassed by poverty, as to render it impossible 
for him to get his improvement upon the market in such time 
and quantity as to afford adequate compensation, and often, as in 
this case, the pecuniary circumstances of the inventor are such 
as to compel him to sell out his entire interest, in order to liqui- 
date his indebtedness incurred in maturing his invention. 

Judge Storrov/'s test of " at once taking its place in the arts as 
a practical thing," with '' pecimiarily profitable ^Y^'pWcd.XAow,'' would 
almost certainly have deprived Roxanna Rice of the usufruct or 
4 



42 EFFECT OF PATENT GRANTS 

her deceased husband's invention, although it was ultimately- 
conceded to be of '' great valued 



JAMES D. SARVEN. 

Sarven was the inventor of the so-called composite carriage- 
wheel (wooden spokes and felloes, combined with a metallic hub), 
which has now become so extensive and familiar an article of 
merchandise, through the length and breadth of the land, and 
which even constitutes a no insignificant factor in the great, grow- 
ing, and profitable list of our manufactured exports. This source 
of wealth and credit owes its existence to our hitherto liberal 
system of patent grants, a system that will yet result in building 
up a great American commerce, if permitted to follow its proper 
and just development in the direction so auspiciously begun. 

The Sarven wheel is an impressive illustration of an invention 
of now great and undisputed value, which, notwithstanding, 
would have probably become forfeit under the proposed schedule 
of progressive fees. In reference to this invention the Commis- 
sioner of Patents used the following language : "The testimony 
shows that during the first eight or ten years of the life of this 
patent, the inventor spent almost his entire time, and devoted all 
his energies in an almost fruitless effort to induce carriage -makers 
to adopt his ijivention. It is only within the last four or, five years 
that he has received any substantial income from it, although 
his efforts at introducing it were persistent, and his diligence 
remarkable, and he adds : * * The case affords an admirable illus- 
tration of the difficulty which inventors sometimes experience in 
introducing the most useful inventions^ or iit overcoming prejudices 
against their introduction. " 

F. N. CLARKE. 

F. N. Clarke was the inventor of a paste-board cutting appa- 
ratus, which is entitled to rank as a generic invention — for the 
Examining Board reported that they ** entertained no doubt of 
the novelty and utility of the machine," and that ''it was not 
intended as an improvement on any that were before known, 
but as a substitute for manual labor; accomplishing what had 
been previously effected by hand." Yet, of this device of 



ON THE PROGRESS OF INDUSTRIAL ARTS. 43 

generic rank, the Board felt constrained to report, "there can 
be no question but that the patentee not only derived no pecu- 
niary benefit from the invention, but that his exertions to 
introduce it into use brought him to rum; so that a few years 
after the grant, on decease of the patentee, Jiis estate was de- 
clared insolvent. 

Would Mr. Storrow's test of ''immediate," "practical" and 
"profitable" recognition have been just or expedient in the 
case of the family of F. N. Clarke? Would the utter inability 
of the estate of the dead and insolvent inventor — to pay the 
proposed further fee — ^have demonstrated the worthlessness of 
the invention? 

ANTHONY COOLEY. 

On the application of Ann M. Cooley, administratrix, for ex- 
tension of the patent to Anthony Cooley, granted June 30, 
1857, for improvement in Whiffle-Tree Hooks, the Commis- 
sioner said: "From evidence in this case it appears that Cooley, 
upon procuring his patent, sold out his drug business in which 
he was, at that time, engaged, in order that he might devote 
himself to the work of introducing his invention. He realized 
from the sale of his former business about ^1,500. This amount, 
and considerably more, was spent by him in the prosecution of 
his new new enterprise, without yielding him any income ; and, 
in i860, he died. His widow and administratrix was unable to 
procure parties to engage in the invention until the year 1867, 
when she entered into an arrangement with the Messrs. Fitch, of 
New Haven, to whom she sold the balance of the original term 
for fifty dollars. Yet such was the intrinsic value of the im- 
provement that this firm, during the last year of the term of the 
patent sold 10,950 gross of these hooks." 

The extension was granted and realized the widow a comfort- 
able maintenance. 

Yet, under the proposed system of progressive fees, this 
patent would certainly have lapsed to the public. 

WILLIAM KELLY. 

Wilham Kelly, of Lyon County, in the State of Kentucky, 
was the originator of a very important improvement in the man- 
ufacture of Iron. In reference to the status of this invention 
it will be sufficient, for most mechanicians, to say that it was 



44 EFFECT OF PATENT GRANTS 

deemed of sufficient importance to be contested by Henry 
Bessem.er, of steel making celebrity, and that in this contest, 
over this particular improvement, priority was awarded to Kelly. 

This invention constituted a radical departure of the very first- 
class, and will be recognized in its full plenitude of importance 
by a simple perusal of the claim, which is as follows: ''Blow- 
"ing blasts of air, either hot or cold, up and through a mass of 
''liquid iron (the oxygen in the air combining with the carbon 
''in the iron, causing a greatly increased heat and ebullition in 
"the fluid mass), and decarbonizing and refining said iron with- 
"out the use of fuel." 

Bessemer, in ignorance of Kelly's invention, had hit on the 
same fruitful expedient, and had carried it an important step 
further, by suspending the converter on trunnions. To Besse- 
mer, in a word, the public was indebted for the " actual, practical 
and pecuniarily profitable application." Moreover, he was an 
original although later inventor of the process in its entirety. 
Now, according to Storrow, the English inventor occupied— 
if any one could — the position of "a subsequent inventor who 
made a truly useful machine, and unconsciously used a feature 
already invented and patented by another." The Kelly inven- 
tion falls under all the disqualifications enumerated by Mr. 
Storrow. " It had not gone into practical and profitable use;" 
and at the end of the fourteen years had netted its projector a loss 
of ;^9, lOO. Mr. Kelly, being a man of some means, probably 
would have met the proposed periodical payments, thus enhanc- 
ing his losses to ;$9, 250; but any one must see that this would 
have been no test at all of the value of the invention, but only 
of the pecuniary ability of the patentee. 

Illustrations to the same purport might easily be made to fill 
a volume, but more space has already been occupied with this 
branch of the argument than we should think desirable, but for 
the necessity of confronting the specious positions of propo- 
nents with the impregnable logic of fads. A few more citations 
and we shall rest this part of the subject on the cases here pro- 
duced — with the assurance that w^e do not pause for lack of 
material — and if gentlemen shall assert the inefficiency of that 
given, either quantitative or qualitative, we promise, like Elijah 
with the skeptical prophets of Baal, to pour on seven meas- 
ures more. 

Gentlemen, we can, and, if requisite, we will, bury you in facts ! 



ON THE PROGRESS OF INDUSTRIAL ARTS. 45 

FETER COOK. 

Peter Cook was the inventor of a novel and valuable device 
for cutting veneers. His whole time was devoted to introducing 
it into use; his diligence was untiring. The Commissioner, in 
acting on this case, said: "His v/ant of success has been with- 
out fault on his part, and has been owing to the many causes 
which so commonly prevent meritorious inventors from reaping 
the reward 'to which they are entitled. A strong prejudice v/as 
entertained against the machine for a long time, and it was only 
at a late period that its merit became established in the com- 
munity. 

''At an early date after obtaining his patent, the inventor, hav- 
ing no means to manufacture his m.achines, sold two-thirds of it 
to parties who undertook to set up the requisite works for that 
purpose and to introduce the machines into market. But they 
were encountered so strongly by the prejudices mentioned that 
all their attempts were defeated. They became discouraged and 
abandoned the enterprise, and left the patentee to meet their lia- 
bilities, which he did to a ruinous extent; and the title of two- 
thirds of the invention being in their hands, he was for a long 
time embarrassed in disposing of it. 

"The patent was, in brief, a source of loss and embarrassment 
to the inventor almost to the end of its term." Would this have 
been a proper case for progressive fees ? 

JOSEPH KINGSLAND. 

Joseph Kingsland was the inventor of a new and valuable 
method of manufacturing paper pulp. The proof before the 
Commissioner established the fact that pulp could be manufac- 
tured more expeditiously, cheaper and better, by this process and 
machine, than by any methods in use prior to its introduction; 
and that it is particularly valuable for making pulp from wood 
and straw, articles which have so recently come into demand for 
the purpose of paper making. It appears, also, from the in- 
ventor's statements, supported by ample proof, that he used due 
diligence to introduce his improvements and pushed their intro- 
duction to the extent of his power, and that, owing to lack of 
means, his machines costing from ^500 to ;^700, and to competi- 



46 EFFECT OF PATENT GRANTS 

tion of other machines, some of them attempted infringements, 
but most of which have failed and gone out of use, he had not 
been successful in getting his process and machinery very exten- 
sively adopted until within about two years preceding the termi- 
nation of his original grant; but the invention was then coming 
into general favor and bid fair to supersede ail the old means 
and methods. 



OBED HUSSEY. 

Hussey patented, in the year 1833, the scalloped knife or cut- 
ter, which, in conjunction with the open guard-finger subsequently 
devised and patented by him, finally solved the problem of the 
harvesting machine. One scarcely knows whether most to 
admire the extreme simplicity, one would almost say obvious- 
ness, of these contrivances, their admirable efficiency, or the 
length of time in which mankind waited and worked, seemingly 
in vain, for the solution of the problem. Yet, for some years 
after the invention and exhibition of the completed invention, so 
slow was the community to recognize the boon, that by the year 
1850 the whole manufacture of reapers did not exceed a hun- 
dred or so. 

In 1878, the manufacture of reapers and mowers, in the United 
States alone, is believed to have exceeded 200,000. Without 
these machines, the vast crops of this year would have rotted in 
the fields. It would have been utterly impossible to procure 
laborers enough to secure the crop by the old-time means. 

Those who have followed this statement to the present point 

will be prepared to learn that the experiences of the father of 

the American harvesting machine was no exception to the fact, 

that 

Great men have seldom had great recompenses. 
Epaminondas saved his Thebes, and died, 
Scarce leaving even his funeral expenses. 
George Washington had thanks, and nought beside, 
Save that all-cloudless glory which few men's is. 

Upon procurement, in 1847, ^^ the patent for his open guard, 
which unlocked the mystery of machine harvesting, Hussey 
proceeded to introduce the invention into general use, by sending 
machines into different parts of the country, and personally visit- 
ing most of the grain-growing States for that purpose. He also 



ON THE PROGRESS OF INDUSTRIAL ARTS. 4/ 

attended agricultural fairs, to exhibit and explain his invention.. 
He advertised extensively in periodicals devoted to agriculture,, 
and in newspapers having a general circulation among farmers. 

About 1853 he visited Europe. He thereby greatly raised the 
reputation of the machine and of American ingenuity, but became 
poorer. On his return from Europe, he devoted himself, with 
great assiduity, to the manufacture and introduction of his ma^ 
chine into use, and found demand for it greatly increased. His 
manufacturing business continued to improve until 1855, when 
he made 521 machines, the largest number he ever manufactured 
in one season ; but he could not sell more than two-thirds ot 
those machines, owing to the competition of others of far more 
ample manufacturing and pecuniary resources, who met him in 
every market, and sold his improvements without his license, 
and without compensating him. From this period, the compe- 
tition of others having more capital and better facilities for man- 
ufacturing and selling than he had, completely paralyzed his 
business, so that his manufacture dwindled down, until in the 
year 1859 he made but ten machines, and in i860 but 19 ma- 
chines. Owing to the pirating of his invention, and the, to him, 
disastrous effects resulting, he, in the year 1856, took legal advice 
as to the course to pursue to protect his rights. He was recom- 
mended by counsel to surrender his patent for re-issue, with 
specifications and claims, more adequately stating his in- 
vention. This course he accordingly adopted, and his patent 
was re-issued in three divisions. By an oversight, such as is 
common, and, apparently, unavoidable in original specifications, 
the all-important opening at the rear of the guard was described 
and claimed as situated ''on top" of the guard, whereas, in fact, 
it was soon found it would work, with at least equal effect, on 
the under side. 

Certain manufacturers deemed they saw here an opportunity 
to evade the claim and acted accordingly. The surrender and 
re-issue — under the interpretation of the law made by tribunals — 
nollied all existing infringements, and trespassers had here an 
opportunity to escape scot free, but as they manifested no dispo- 
sition to discontinue the trespasses, and in fact bid him defiance, 
he had no recourse but to enter into litigation or surrender all 
his dearly purchased rights, acquired at the expense of so much 
toil and so many sacrifices. A quarter of a century of the best 



48 EFFECT OF PATENT GRANTS 

years of his life had slipped away and the goal seemed as far as 
ever from his grasp. 

Having secured his thus amended patents he entered suit 
against the Honorable Cyrus H. McCormick, at that time the 
largest infringer of his patent. The suit was stoutly and per- 
sistently contested. A large amount of testimony was taken and 
the case argued for defense with extraordinary ability and zeal. 
Nothing that money or professional skill could fairly do to break 
down the patent was left undone. But the decision was finally 
rendered in his favor, the patent triumphantly sustained, and on 
his offering to , license the parties they acceded and thereafter 
worked under his patent. 

Hussey, in his application for extension, stated that many tried 
to evade his patent by using parts of the invention. That 
Messrs. Whiteley, Fassler and Kelly, and Andrew Whiteley, of 
Springfield, Ohio, appeared to be managers of a league against 
him ; and that parties feared to take licenses of him, because of 
the expensive litigation which was rendered necessary to main- 
tain the patent, so as to make the right of any pecuniary value, 
and justify the payment of the license fee. So onerous had these 
controversies been, that the patentee, near the close of the four- 
teen years of his second patent, and nearly thirty years from his 
invention of the scalloped cutter, testified, under oath, that 
^'Litigation expenses had swallowed up all his profits. '^ We 
thus, find this great inventor, in the evening of his eminently 
useful life, like so many of his predecessors of the same inven- 
tive rank, in a condition little above destitution. 

ELIAS HOWE, Jr, 

The story of Elias Howe, Jr. (the James Watt of the sewing 
machine) is best related in the inventor's simple narrative; he 
says: ''I commenced the invention of my sewing machine as 
early as 1 841, when I was twenty- two years old, and a machinist 
by trade; being then dependent upon my daily labor for the 
support of myself and family. I could not devote my attention 
to the subject during the working hours of the day; but I 
thought upon it when I could, day and night. It grew upon 
me till in 1844, I felt impelled to yield my whole time to it. I 
was then poor, but with promises of aid from my friend George 



ON THE PROGRESS CF INDUSTRIAL ARTS. 49 

-Fisher, I thereafter devoted myself exclusively to the construc- 
tion and practical completion of my machine. I v/orked alone 
in the upper room of my friend's house, in Cambridgeport, 
Massachusetts. I finished my first machine by May, 1845. I 
soon tested the practical success, by sewing with it all the prin- 
cipal seams in two suits . of clothes, one for myself and one for 
Mr. Fisher. Our clothes wore as v/ell as any hand sev/ing. I 
have my first machine still, and it will nov/ sev/ as good a seam 
as any sev/ihg machine knov/n to m^e. ***>!< 
My papers v/ere filed as a caveat in the patent office, September 
22nd, 1845. I completed my application for my patent May 
27th, 1846, and at the same time conveyed one-half of my in- 
vention and patent, if obtained, to my friend Mr. Fisher, for 
five hundred dollars, in fact, though a much larger sum Vv^as 
named in the deed, on his suggestion. My patent was issued 
September loth, 1846. 

"I made a third machine [his second had been deposited as a 
model in the Patent Office], which / ^7^ied to get into use on terms 
satisfactory to myself and Mr. Fisher. After my patent was 
obtained, Mr. Fisher declined to aid me further. I then owed 
him about two thousand dollars, and I was also in debt to my 
father, to v/hom I conveyed the remaining half of my patent, for 
one thousand dollars, September 21st, 1846. Having parted 
with my whole title, and being in debt, and having 710 means foi' 
7nanufactnring machines, I was much embarrassed, and did not 
knozv zvhat to do. 

''My brother, Amasa B. Howe, suggested that my invention 
might succeed in England, where, if patented, it would be wholly 
under my control ; and, on my behalf, with means borrowed of 
my father, my brother took my third machine to England, to do 
the best he could with it. He succeeded, November, 1846, in 
selling my machine and invention to one William Thomas, of Lon- 
don, to be used in his ov/n business, for two hundred and fifty 
pounds in cash, and a verbal agreement, by Mr. Thomas, to 
patent my invention in England, in his own name ; and, if it 
should prove successful, to pay me three pounds royalty on each 
machine made or sold under his patent. Mr. Thomas also agreed 
to employ me in adapting my machine to his work (making 
gaiter-boots, stays, &c..), at three pounds per week wages. Mr, 
Thomas obtained a patent for my machine in England, dated 



50 EFFECT OF PATENT GRANTS 

December ist, 1846, and I went to London, to enter his employ, 
in February, 1847. ^ then made several machines adapted to 
his work, with various modifications and improvements, for that 
purpose. Mr. Thomas having obtained his patent for my inven- 
tion, and having received the benefit of my skill in adapting my 
machine to his peculiar kind of work, ceased to be my friendy if 
he ever had beeit such, and I was discharged froin his employment. 

'* While working for Mr. Thomas, I had, at his request, sent for 

my wife and three children, and they had joined me in London, I 

had also, at Mr. Thomas' suggestio?i, endorsed a hundred pound 

note, 07t which I was afterwards sued and arrested ; but I was 

finally released 07i taking the poor debtoj^-'s oath. 

"By small loans from my fellow mechanics and by pawning 
what few articles the English law allowed a poor debtor to keep, 
I managed to live with my family in London, until, through 
friendly representations from some American acquaintances I 
found there, the captain of an American packet was induced to 
take my wife and children home to the United States upon 
credit; and they sailed for New York in the winter of 1848-49. 
/ zvas then alOBG and extremely poor, in a foreign land. My in- 
vention was patented and in successful use in England, but with- 
out any profit to me and wholly out of my control. I could do 
nothing to enforce my eights against Mr. Thomas, who had ample 
means, and I had none. 

"In the spring of 1849, i^^debtedto a Scotch mechanic for a steer- 
age passage home, I returried to the United States, poorer, if pos- 
sible, than whe?i I left. 

** On my return I found my wife and children very destitute ; all 
their personal effects, except what they had on, being still detained 
to secure the payment of their passage hoine. "My wife waS 
sick, and diod. in ten days after my arrival. 

["unconscious users."] 

" During my absence in England a considerable number of sew- 
ing machines, embracing my invention, had been made and put 
into operation in different parts of the United States ; some of 
them by the procurement of Mr. Fisher, or under rights derived 
from him, but most of thein without such right, and being clear in- 
fringements of my patent.'' 

Mr. Howe then relates how — having obtained an agreement 



ON THE PROGRESS OF INDUSTRIAL ARTS. 5 I 

from his father in the summer of 1849 to re-convey to him the 
half interest in the patent — he tried to induce Mr. Fisher to join 
him in enforcing his patent against infringers who would not pay 
for it — and how Mr. Fisher declined doing so' — and how such 
declination, coupled with his own "well-known poverty and 
embarrassment," emboldened these parties to refuse ''any satis- 
factory settlement." 

We have now reached the darkest hour in the experience of 
an ill-used hero and martyr. Eight weary years had slipped 
away, and we see this benefactor of his age and country penni- 
less and sunk in debt, with his three motherless children. It is 
remembered that he found his young wife sick on his return to 
his native shore and that she died ten days after his arrival — 
that she and the little ones were destitute, and that she had 
been unable to redeem their scanty wardrobe, held as security 
for their passage money. We are not informed of the nature 
of his wife's sickness, but who can doubt that it was in great 
part due to her privations and anxieties, the cruel bitter fruit 
of all their high aspirations and devoted sacrifices? 

'Tis the vile daily drop on drop that wears 
The heart out, like the stone, with petty cares. 

Four years had passed since the young, just-married, Cam- 
bridgeport machinist proudly carried his model to Boston for the 
purpose of procuring a patent, and at this period of the sad nar- 
rative, it is now in the year of grace 1849, (at the very Egyptian 
midnight of Elias Howe, Junior's, troubles) that brother Storrow 
would have had the nation that has pocketed a million dollars of 
its inventors' hard earnings, and derived untold wealth from 
Howe's invention, present its demand for his money or the life 
of his patent ! 

Howe adds: 

"At the time when I obtained my patent I was wholly inex- 
perienced in business transactions of any kind ; and I had no 
conceptions of the usual practices of unscrupulous speculators in 
or infringers of patent rights, of which, however, I have since 
had bitter experience." 

Even after the lapse of fourteen years from the time when he 
took his model to Boston, and nearly nineteen years from his 
first labors on the invention, Howe writes: 



52 EFFECT OF PATENT GRANTS 

"I have hitherto failed to obtain any compensation for my in- 
vention from Mr. Thomas, in England, though he has recovered 
heavy damages there against infringers, and has already realized 
a large income for licenses, at a high ro3/aIty, under his patent 
for my invention, and I am. now advised that my claim against 
him must be maintained, if at all, by a long and expensive suit 
at law, of doubtful result. 

. JETHRO WOOD. 

On Jul}/ 1st, 1814, Jethro Wood received his patent for the 
Cast-Iron Plow, which was so largely instrumental in making 
agriculture possible in the early settlement of the Western States. 
This is an invention of great and acknowledged value ; insomuch 
that a bill passed the House of Representatives, July 7th, 1870, 
''For the Relief of the heirs of Jethro Wood, the Inventor of 
the Modern Plow." This bill, which never became a law, is 
worded as follows : 

''Whereas, Jethro Wood, of Cayuga county. New York, the 
inventor of the Cast-Iron Plow, now universally used in this 
country, died in poverty, after devoting his fortune and his life 
to the introduction of his art: And, whereas, few men have con- 
ferred a greater benefit on mankind than he did, by the invention 
and practical application of this improvement:" Then follows 
the appropriation of twenty-five thousand dollars to his heirs; a 
donation which, to this day, they have never received. 

ELI WHITNEY. 

Eli Whitney, of Massachusetts, while teaching school in Geor- 
gia, devised the cotton gin; the invention which has long been 
accredited, and truly so, with giving rise to the production of our 
greatest export. The device was, of course, patented, but was 
so persistently and shamelessly infringed, that the inventor never 
realized any profit. Whitney patented the cotton gin in 1793. 
He received, on account of the invention, about $^0,000, every 
cent of which was spent in defending his patent, so that actually 
he was, himself, benefited not one iota by his invention, but 
infinitely harmed, because it wasted, without renumeration, the 
best years of his life. 

An eminent attorney, Mr. Seth C. Staples, in an address 



ON THE PROGRESS OF INDUSTRIAL ARTS. 



53 



before a federal tribunal about thirty years ago, remarked : "I 
recollect, very well, when I was a small boy, my mother pur- 
chased raw cotton for 2s. and 6d, per pound, and I used to 
help her pick it winter evenings. Now you can purchase an 
article, picked as clean as is possible, for 6 cents per pound. 
I, myself, heard Mr. Whitney say, when riding through the 
country, just before his death, when he was laboring under 
the disease which he had contracted while endeavoring to main- 
tain his rights, that he would never advise any man afterwards 
to take out a patent. 

V/hitney's difficulties in enforcing his rights were rendered 
more onerous by the avowed prejudice against patents, enter- 
tained by the tribunals of that day. 

The experiences of Whitney constitute an admirable typical 
case. The cotton gin suddenly supplanted the labor of thou- 
sands of hands ; it absolutely destroyed an industry which occu- 
pied nearly whole populations during a large part of the year* 
but what v/as the effect upon the people ? In eight short years 
following the introduction of the gin the production of American 
cotton rose from 130,000 pounds to 18,000,000 pounds. In 
1792 the quantity of cotton which a planter could raise was 
limited to the quantity which his hands could pick the seed 
from. A man could cultivate an hundred fold more than he 
could pick the seeds from between harvest-tide and planting. 
The cotton gin relieved him from the labor of seed picking and 
enabled him to devote his labor to cultivation alone, with the 
result above noted. During the ten years from 1800 to 18 10, 
the production rose from 18,000,000 to 90,000,000 pounds. By 
the year 1859 ^^^^ annual production of American cotton had 
reached 2,441,000,000 pounds — more than 16,000 fold the yield 
of 1792! 

By 1 8 10 the market price of cotton had fallen one-half; yet, 
so remunerative was the business, that the planters of Maryland 
and Virginia experienced a fever of migration to the South, to 
engage in the cotton culture, similar to the gold excitement of 
1849. 

This great industry and source of wealth, which gave cheap 
clothir.g to the people, and which, without exaggeration, gave to 
cotton the title of *' King," was mainly attributable to an inven- 
tion out of which the inventor was not enriched one cent. 



54 EFFECT OF PATENT GRANTS 

ALPHEUS C. GALLAHUE. 

The shoe-pegging machine, without which the important in- 
ventions of Sturtevant would have been useless, and, in fact, 
would never have been made, is supposed to be among those 
stigmatized by proponents (see pretended answer to Mr. Hub- 
bell's question, page 437, S. Mis. Doc. No. 50) as ''worthless 
patents which stand in the way of inventors themselves, and 
which it is for their interest that they shall be gotten out of the 
way." This patent was one of the kind which proponents are 
fond of calling ''defunct." Such, however, was not the opinion 
of the court ; for (as reported in 6 Fisher, case of Gallahue v. 
Butterfield, et al.,) the Gallahue patents, three in number, were 
completely sustained, and every one of them declared to be 
infringed by the defendants. Gallahue had exercised the custo- 
mary diligence in endeavoring to get his machine introduced, 
and " failed because of the great prejudice existing against ma- 
chine-made shoes, by manufacturers and laborers. " His expenses 
at the termination of fourteen years had been ^^3,732.50, and his 
receipts ^3, 103.33, leaving $62g.i'/ net receipts. 

The case of Alpheus C. Gallahue illustrates the danger of esti- 
mating the value of an invention by the ability of the patentee 
to make it pecuniarily available to himself, or of asserting that, 
because the patent has not been a business success, the invention 
is "defunct." 

While it may be admitted that the successful inventor is some- 
times but the winner of a race, in which, had he failed, another 
would have accompHshed the result. Yet, it is also true, that 
had there been no goal, there would have been no race. 

NELSON GOODYEAE. 

One of the most important and characteristic of American 
manufacturers is that of India rubber goods. Heywood, the 
original projector of the process known as vulcanizing — having 
spent years, and his last shilling without reaching a satisfactory 
result — finally made over his interest to Goodyear. Goodyear 
spent yeafs and years — in which his family were frequently 
almost at the brink of starvation — and only achieved the success 
of which all the world knows, when past the prime of life, and 



ON THE PROGRESS OF INDUSTRIAL ARTS. 55 

long after years in which his circumstances had been reduced to 
a strait that would have caused any one but an inventor to 
despair. 

Commissioner Holt, in his decision on this case used the fol- 
lowing language: ''From the first moment that the conception 
entered his [Goodyear's] mind until his complete success — em- 
bracing a period q>{ from sixteeji to eight ee7i years — he applied 
himself unceasingly and enthusiastically to its perfection and to 
its introduction into use, in every form that his fruitful genius 
could devise. So intensely were his faculties concentrated upon 
it that he seems to have been incapable of thought or of action 
upon any other subject. He had no other occupation, was in- 
spired by no other hope, cherished no other ambition. He car- 
ried continually about his person a piece of India rubber, and 
into the ears of all who would listen he poured incessantly the 
story of his experiments, and the glowing language of his 
prophecies. He was, according to the witnesses, completely 
absorbed by it, both by day and night, pursuing it with untiring 
energy, and with almost superhuman perseverance. Not only 
were the powers of his mind and body thus ardently devoted to 
the invention and its introduction into use, but every dollar lie 
possessed or could command throiigh the i-esoiirces of his credit, or 
the infiue7ices of friendship, was tpicalculatingly cast into that 
seething caldron of experiment whicJi was allozued to knozu no re- 
pose. The very bed on which his wife slept, and the linen that 
covered his table, v/ere seized and sold to pay his board, and we 
see him, with his stricken household, following in the funeral of 
his child, on foot, because he had no means with which to hire a 
carriage. His family had to endure privations almost surpassing 
belief, being frequently without an article of food in the house, 
or fuel in the coldest weather ; and indeed, it is said that they 
could not have lived through the winter of 1839 t)ut for the 
" kind offices of a few charitable friends. They are represented 
as gathering sticks in the woods and on the edges of the high- 
Avays with which to cook their meals, and digging the potatoes 
of their little garden before they were half grown, while one of 
their hungry children, in a spirit worthy of his father, is heard 
expressing his thanks that this much had been* spared them. 
We often find him arrested and incarcerated in the debtor's 
prison, but, even amid its gloom, his vision of the future never 



56 EFFECT OF PATENT GRANTS 

grew dim, his faith in his ultimate triumph never faltered. Un- 
dismayed by discomfitures and sorrows which might well have 
broken the stoutest spirit, his language, everywhere and under 
all circumstances, was that of encouragement and of a profound 
conviction of final success." 

In 1855 he appeared at the World's Fair in Paris, where the 
Golden Medal and the Grand Cross of the Legion of Honor 
were awarded to him, as the representative of his country's inven- 
tive genius. Fortune, however, while thus caressing him with 
one hand, was, at the same moment, smiting him with the other; 
for we learn from, the testimony, that these brilliant testimonials 
passed from the Emperor and reached their honored recipient, 
then the occupant of a debtors' prison, among strangers and in a 
foreign land ; tJins adding yet another to that long, sad catalogue 
of public benefactors, who have stood neglected aud hnpoverished in 
the midst of the ivaviiig harvest of blessijzgs they had bestowed, 
upon the race.'" 

''Throughout all these scenes of trial, so vividly depicted by 
the evidence, he derived no support fivm the syinpatJiies of the 
public. The community at large seem to have looked on him as 
one chasing a phantom ; there were times when even his best 
friends turned away from him as an idle visionary, and he was 
fated to encounter, on every side, sneers and ridicule, to which 
each baffled experiment and pecuniary loss inflicted, added a 
yet keener edge. The mercenary, naturally enough, pronounced 
his experiments, so freely made, culpably wasteful ; the selfish 
and the narrow-minded greeted the expression of his enlarged 
and far-reaching views, as the ravings of an enthusiast ; while it 
is fair to infer, from the depositions, that not a few of the timid 
and plodding who cling tremblingly, apprehensive of change, to 
the beaten paths of human thought and action, regarded him as 
wandering on the very brink of insanity, if not already pursuing^ 
its wild and flickering lights. Such, hi all times, has been the fate 
of the greatest spirits that have appeared on the arena of human 
discovery ; a?id such will probably continue to be the doom of all 
whose stahvart strides carry the^n in advance of the race and genera., 
tion to which they belong. 

"Even after his completion of the invention, capitalists shrunk 
away from the discovery so confidently announced, as a chimera, 
and manufacturers, who had suffered so deeply hy the India 



ON THE PROGRESS OF INDUSTRIAL ARTS. . 5/ 

Rubber business, denied it their confidence. Its practicability 
had to be demonstrated by a long series of illustrations which 
the total want of experience rendered protracted and often ruin- 
ously expensive. Every inch occupied in the enlarging field of 
its usefulness had to be conquered by many sacrifices, while of 
the Protean formed applications to which it was destined to at- 
tain there was not one that did not involve an outlay of treasure, 
of toil and of high artistic skill. All these from the beginning 
to the present hour have been unceasingly bestowed upon it." 

The entire decision of Commissioner Holt is well worth an 
attentive perusal and will be found remarkably pertinent to the 
questions involved in this controversy, if controversy it can be 
called when so far the advocates before the Committee of the 
proposed changes have had nearly all the talk to themselves. 
In regard to the elements of time expended and difficulties 
encountered in every invention of the first class, and its value 
relatively to subsequent improvements, the honorable Commis- 
sioner says: "It is extremely difficult to estimate in the coin of 
dollars and cents the worth of eighteen years of the prime of 
human life — especially so when that life is one of lofty genius, 
of indomitable enterprise, and of stainless virtues. It is, how- 
ever, about that period of precisely such a life that has been 
consecrated to the pursuit and development of this discovery, nor 
could a shorter period of time have sufficed for the arduous and 
perplexing task. Throughout those busy and toilsome years it 
is apparent that there has been no compromise with the sugges- 
tions of avarice, or with the claims to self indulgence and ease. 
It has been already fully shown that the applicant's fortune, his 
health, the comforts of his family, the freshness of his early, 
and the patient energies of his later manhood, have all been; 
unhesitatingly melted down in the crucible of this enquiry, and 
he is now seen tottering toward that grave which must soon open 
in his path, with nothing left of the heroic and athletic man but 
what remains of the maimed and scarred soldier on the battle- 
field, a wreck which every great and generous people has taken 
fondly to its bosom. The time of the indolent, the selfish, the 
dissolute and the dull is little worth to the world which they 
rather cumber than bless with their presence; but the time of 
the gifted, the brave, the philanthropic, and unconquerable sons 
of genius, has for mankind a value which we should but feebly- 
5 



58 EFFECT OF PATENT GRANTS 

express in the arithmetic of dollars. * ^ * What that time 
and ingenuity have yielded to the public is the true test of their 
value, alike to that public and to the inventor; for what the for- 
mer have received the latter must, upon every principle of sound 
logicy be held to have parted with. * * >K 

" It has been assumed, as a means of avoiding the force of these 
estimates, that the applicant is entitled to receive from the pub- 
lic, not what the invention is now worth, developed and estab- 
lished as it is, but what it was worth when the patent issued. 
This view has been urged with much persistence and plausibility, 
but it has not impressed me as liberal or sound. When the 
invention came, timid, and struggling into existence, meeting in 
every quarter with scoffs and distrust, had it been offered for sale 
in the market, it would probably have commanded a few thousand 
dollars — possibly less. [Analogy with similar cases justifies the 
belief that Goodyear would have had to purchase, rather than 
sell, the privilege of release from both ownership and liabili- 
ties] ; but to say that its value is to be measured by what 
it was then considered to be worth, would be to determine that 
the tree is to be judged rather by the green, than by the ripe 
fruit found upon its branches. The present expanded and pros- 
perous condition of the invention, is mainly owing to the genius 
and unceasing struggles of the applicant, and he may justly reap 
what he has sown and so diligently cultivated. In the adjust- 
ment of machinery to accomplish the ends so distinctly pointed 
out by the inventor, and in the manipulations of the gum and 
treatment of the fabrics in the various stages of their manufac- 
ture, it is admitted that many improvements have been made by 
skillful mechanics and operatives, and those have their utility and 
importance ; but to allow such labors to rival or depreciate the 
claims of the applicant, would be to rank the simple plowman of 
the fields with that sublime and beneficent Providence, which 
creates alike the soil out of which the harvest springs, and the 
sunshine and the shower by which it is nurtured and matured." 

Commissioner Hoyt possessed the singular merit, for a Com- 
missioner of Patents, of believing heartily and unreservedly in 
the mission, and importance of invention — especially of inven- 
tion in its generic phases. The concluding passages of his 
decision, are so pertinent in their appHcation to the present 
effort before Congress, to draw the lines more tightly around 



ON THE PROGRESS OF INDUSTRIAL ARTS. 59 

the already hard lot of the original inventor — are moreover such 
excellent reading — that no apology is needed for giving them 
in full. The manoeuvers of Goodyear's chief opponent can not 
fail to remind the reader of the similar and, unfortunately, more 
successful hostility of Cort's antagonist, Homfrey — and of the 
yet bolder attempt of the Boston Shoe and Leather Association, 
who, failing before the judicial tribunals, have the effrontery to 
ask that the law of the land be changed to suit, what they 
choose to think, their interest in the premises. In reference to 
this class of persons, the Commissioner says : 

*' Another and most potent reason why this patent should be 
extended, is found in the acknowledged fact that the public have 
not kept the faith which they plighted, with the applicant, when 
he consented to surrender to them a product, which was in effect, 
the concentrated essence of the physical and intellectual ener- 
gies of his entire life. That public stipulated with him that he 
should peaceably enjoy for fourteen years the monopoly created 
by his patent, and had he been permitted to do so, he would, no 
doubt, long since have realized an ample remuneration; but, so 
far from this having been the case, no inventor probably has ever 
been so harrassed, so trampled upon, so plundered by that sordid 
and licentious class of infringers known in the parlance of the 
world, with no exaggeration of phrase, as " pirates. " The spolia- 
tions of their incessant guerilla warfare upon his defenseless 
rights have unquestionably amounted to millions. In the very 
front rank of this predatory band stands one who sustains, in 
this case, the double and most convenient character of contestant 
and witness; and it is but a subdued expression of my estimate 
of the testimony he has lodged, to say that this Parthian shaft — 
the last that he could hurl at an invention which he has so long 
and so remorselessly pursued — is a fitting finale to that career 
which the public justice of the country has so signally rebuked." 

"Important as are, to the parties to this issue, the immediate 
consequences bound up with it, they are insignificant indeed as 
compared with the value to the public of the principle involved. 
From the very foundation of this government, it has been its settled 
policy to secure a just rewai^d to all inventors ^ and it is to the inflexi^ 
ble maintenance of this policy that we are indebted for the unparalleled 
advancement, which, as a people, we have made in the useful arts. 
All that is glorious in our past or hopeful in our future is indisso- 



60 EFFECT OF PATENT GRANTS 

liibly linked with that cause of human progress of zvhich inventors 
are the preux clievaliers. It is no poetic translation of the abiding 
sentiment of the country to say that they are the true jewels of 
the nation to which they belong, and that a solicitude for the 
protection of their rights and interests should find a place in 
every throb of the national heart. Sadly helpless as a class, 
and offering, in the glittering creations of their own genius, 
the strongest temptations to unscrupulous cupidity, they, of all 
men, have most need of the shelter of the public law; while, 
in view of their philanthropic labors, they are, of all men, most 
entitled to it 

''At the close of all his toils and sacrifices, and of the humili- 
ation he has been called on to endure, this public spirited in- 
ventor, whose life has been worn away in advancing the best 
interests of mankind, is found to be still poor, oppressed with 
debt, and with the winter of age creeping upon his shattered 
constitution. It is perfectly manifest that this is in no degree 
the result of vice or of improvidence on his part, but is an in- 
exorable consequence of the impoverishing experiments insep- 
arable from the prosecution of his great enterprise, and of that 
prolonged and exhausting strife in which unscrupulous men 
have involved him." 



PROPOSED RESTPICTIONS UNNECESSARY. 

With Nelson Goodyear we close our citations of facts in dis- 
proof of the implication that the inventor of a valuable improve- 
ment is, in any fair sense, or as a matter of course, master of the 
situation; that it is proper, expedient, or just to impose a special 
tax on him ; or that the proposed additional impost would afford 
any test whatever of the value of the invention, or even of the 
inventor's estimate of it. Even were the instances quoted excep- 
tional, and not, as they really are, typical, it is believed that they 
would be enough to justify grave deliberation, whether some 
more equitably working plan than that proposed is not possible. 
In plain fact, however, the law as it now exists, is, to a great 
extent, effective in the direction sought. Just look at it. First, 
the application must undergo the sifting of the Examiners 
specially appointed, and well-informed in the specialty to which 
the alleged invention pertains, and even after grant, the patent is 



ON THE PROGRESS OF INDUSTRIAL ARTS. - 6l 

assailable in all respects in any court in which it may^be brought 
by the patentee or his representatives. Gentlemen well know 
that not a year passes in which patents are not virtually vacated 
by the refusal of courts to give them legal effect. That such 
instances are exceptional, is surely no cause for regret, or that, 
under our wise and beneficent system of examination, patents 
should so generally pass, unscathed, the fierce light of judicial 
investigation as now conducted. 

Inasmuch as it is by proponents' own admissions, only these 
litigated patents, that their clients fear or, in fact, care an3^thing 
about, it seems difficult to see what more is wanted than to 
give full effect to the modes of action already provided for. 

For an insignificant fraction of expenditures of litigation, man- 
ufacturers and railway associations might keep informed of 
improvements, and secure in their incipiency, and at a compara- 
tively small outlay, devices of vast benefit to themselves, their 
employes and customers. Such an examination of the official 
record, as would be sure to precede a transaction in realty, 
would prevent "unconscious use " of features that were the prop- 
erty of another. 

Proponents admit the danger of pronouncing too dogmatically 
against an invention, on the ground of frivolity, and quote the 
competent testimony of James Watt, that even " failures have 
their uses." The act of invention, in fact, bears no inconsider- 
able resemblance to nature's process in scattering the germs of 
organic life. Time, only, and experience can determine what 
shall take root and bear precious fruit, perchance some sixty and 
yet other some an hundred or a thousand fold. It is, therefore, 
advisable, after such scrutiny as a well conducted examination 
can give, to let both grow together until the harvest, lest, in 
attempting to root up the tares, the wheat be also rooted up. 

As for patents for inventions deemed trifling, or for devices 
which seem scarcely to proclaim the exercise of the inventive 
faculty, we quote from the able testimony of John Farey, 
Esq., before a committee of the British House of Commons in 
the year 1829. The English Government, then as now, granted 
patents for any device whatever that an applicant described in 
proper legal phraseology and for which he paid the prescribed 
fees, and, the proof is notorious, granted and yet grants patents 
for the same thing over and over again; and as a consequence, 



62 EFFECT OF PATENT GRANTS 

McCulloch, the well-known publicist, has the following remark 
[Commercial Diet., page 275]: ''Considering the authority 
under which [English] patents are granted, can any one wonder 
at the number that have been overturned in the Courts of Jus- 
tice? or at the litigation to which they have given rise?" And 
yet of such patents Mr. Farey could say as follows [page 34] : 
Question — ''Do you consider a more easy mode of setting aside 
patents should be adopted?" Answer — "I think they need 
nothing more than to let them die a natural death, which they 
do without any process at all." 

However, it is believed little need be said, pro or con, as to 
these harmless sorts — because it is not with such that our friends' 
clients have any controversy — but only such as possess "a fea- 
ture" which they "unconsciously use" and for which they have 
an objection to consciously paying. 

GERMINAL INVENTIONS. 

A late report of a Commissioner of Patents regrets the "un- 
avoidable grant of patents for inventions more or less crude, for 
machines capable of operating mechanically, but not capable of 
profitable operation and not valuable commercially," and that 
"these patents sometimes lie dormant until, in the progress of 
the arts, and by the efforts of more practically successful inven- 
tors, the goal is ultimately reached and inventions are perfected 
and made practically useful, in which, however, are embodied 
the germs found in some of these old patents." The gentleman 
concludes by lending the weight of his official position to the 
project of periodical fees as a remedy for what he is pleased to 
consider a wrong, and as he makes no suggestion of abating the 
application fee we are bound to infer that he would increase the 
aggregate mulct by the sum of the additional duties. 

The proposition carries its own answer. Every great inven- 
tion is a matter of growth ; at first, slow and feeble ; afterward, 
as ^'the germ'' reaches recognition or more favorable environ- 
ments, more rapid, more pronounced and more available. The 
first stages are necessarily more or less "crude" and halting. 
To contemn these embryos for immaturity is to re-enact the role 
of Pitt's assailant who accused him of extreme youth! But as 
Wordsworth said of individuals, so it may be said of inventions — 



ON THE PROGRESS OF INDUSTRIAL ARTS. 6^ 

the boy is the father of the man. That later comers, profiting- 
by the misadventures of the pioneer who blazed the first track, 
should achieve results more commensurate with public require- 
ments — perhaps secure public recognition at all — is to be ex- 
pected. Would it not be very surprising were it otherwise? 
Says Samuel Smiles: ** By slow, and often painful steps, Na- 
ture's secrets have been mastered. Not an effort has been made 
but has had its influence, for no human labor is altogether lost ; 
some remnant of useful effect surviving for the benefit of the 
race, if not of the individual. Even attempts apparently useless 
have not really been so, but have served, in some way, to ad- 
vance man to higher knowledge, skill or discipline. A single 
step won gives a firmer foothold for further effort." Man in his 
early inventive essays, oft-times, like the infant, learns to walk 
by stumbling. A policy that would ignore the seemingly abor- 
tive efforts or slight successes of the earlier explorer, betrays a 
superficial and unworthy appreciation of the principles that un- 
derlie and are inseparably interwoven with all human progress. 



THE PATENTEE AND THE PUBLIC AS CONTRAOTINa 

PARTIES. 

To secure a valid patent, such as the courts will sustain, the 
applicant is required to have invented a useful novelty capable 
of actual service. He is also required to prepare a model within 
certain prescribed dimensions, and to prepare and ** file in the 
patent office a written description" of "the manner and process 
of constructing, and using it in such full, clear, concise and exact 
terms as to enable any person skilled in the art to which it per- 
tains, or with which it is most nearly connected, to make, con- 
struct and use the same." He is further required to ''explain 
the principle thereof, and the best mode in which he has con- 
templated applying that principle so as to distinguish it from 
other inventions," and to ''particularly point out and distinctly 
define the part, improvement or combination which he claims as 
his invention or discovery." He is also required to prepare and 
file an accurate and artistic drawing (marked with letters of refer- 
ence) on a prescribed material and of prescribed dimensions. 
Finally, he must make oath to the invention and pay the pre- 
scribed fees. 



64. EFFECT OF PATENT GRANTS 

Me must, in brief, before his right to his own discovery can 
receive legal recognition, prepare, at his own trouble and cost, 
and place on record so complete a revelation of the invention 
as to give the world, for all time thereafter, full possession of his 
secret. 

Having complied with all the above recited requirements to 
the satisfaction of the patent office (which is often only reached 
after numerous amendments, and not infrequently after a costly 
and tedious interference with a rival applicant), the patentee 
ihas discharged /lis part of the contract absolutely and completely. 
For the brief tenure of his franchise, his right of possession 
should be respected in just so much as he has given to the 
world — no more, no less. Interest will impel him to make it 
useful to himself and others at as early a period of his short 
franchise as possible. No sane man would incur the risk, 
trouble, expense and publicity of a patent for that which he 
designed to hide away in his cellar. But he is under no 
obligation to operate his invention. Whether he does so or 
not is nobody's business but his own. He is as free to use or 
neglect means to make it productive as is the owner of a mine 
or a field. Indeed his tenure in the creature of his genius rests 
on higher ground than can be truly asserted for possession of 
things already in existence; while the extreme brevity of his 
occupancy is a guarantee against the evil effects that sometimes 
accompany unproductive or mischievous possession in perpetuity. 

To speak of such a franchise as ''standing in the way" of later 
improvements, and to ask a change in the laws for the express 
purpose of "killing it," is as if the builder of a house should 
complain of, and desire to legislate out of existence, the right of 
another to the ground on which that house was erected. 

AMERICAN AND ENGLISH SYSTEMS COMPARED. 

The instances cited, and even the testimony of the more intel- 
ligent of the proponents, including Messrs, Smith and Storrow 
themselves, show that 

Relatively to the system of granting patents, which obtains 
liere, that of England, does not ''work well enough," as stated 
iby Mr. Storrow, but badly; by excluding ingenuous poverty; by 
setting up a false, unjust, and mischievous test; by inexcusably 



ON THE PROGRESS OF INDUSTRIAL ARTS. 65 

adding to the already too onerous burdens of radical invention ; 
by imposing a tax on inventors, as such ; by making the legal 
recognition of intellectual property a means of revenue, and by 
defeating or impairing the avowed purpose of the Constitution, 
that of '' promoting \\\Q. progress of science and the useful arts, 
by securing, for limited times, to authors and inventors, the 
exclusive right to their respective writings and discoveries." 
This wisely framed clause recognizes the inherent ^' right'' of the 
brain-worker to the product of his ingenuous toil, and merely 
instructs the legislature to ''secure'' him in that already existing 
right; and that for the single purpose oi promoting the progress 
of science and the useful arts. Common sense, and the best 
authorities, concur in restricting the right or power of Congress 
to tax applicants for patents, to the expenses incident to the grant. 

Can any unbiased reader of the story of Nelson Goodyear as- 
sert that the proposed imposts at the expiration of four and nine 
years respectively would not have imposed a cruel burden upon 
this over-taxed inventor, and have probably vacated the patent; 
and this conceded, will he dare to say with Judge Storrow that 
such a measure "will only cut off those which, after trial have 
been practically abandoned as w^orthless?" — (See page 156.) 

How could Mr. Storrow's colleague, Mr. Chauncey Smith, in 
view of this and scores of similar cases: nay, after himself recit- 
ing the similar experiences of James Watt, how, we repeat, 
could Mr. Smith, in the face of these sadly monotonous annals 
of almost every pioneer in invention, stand up before the Com- 
mittee and give the answers which he did. 

The Chairman — ''You think, if it is valuable to the pubHc, 
he certainly ought to be able to pay it?" 

Mr. Smith — "Yes, sir." 

This witness does not think it would have been ''onerous'' 
for Nelson Goodyear, for example, at the expiration of nine 
years — which was about the time he occupied a debtor's prison — 
to pay the hundred dollars he did not pbssess, for the invention 
of his own begetting, to a community which was his unspeak- 
able debtor. The witness thinks that if valuable to the public, 
the inventor "certainly ought to be able to pay for it." The 
logic is admirable — the invention is valuable to the public, c7go, 
the inventor, whose genius and labor have evolved it out of 
nothing, "ought to be able to pay" the public, to whom it is 



66 EFFECT OF PATENT GRANTS 

valuable and who have never lifted a finger in its aid. Yes, Mr. 
Witness, he ought to be able to pay for it. The witness, who is 
a shrewd business man, finds himself able to exact pay for his 
services, even of a shoe and leather association, and can pay for 
what he wants ; ergo, the inventor ought to be able to do the 
same. Nelson Goodyear ought to have been able to pay it — it 
was valuable to the public — but the public, as usual, was wedded 
to its accustomed rut, and would have none of it ; least of all 
would it pay for it. It was really wrong of Nelson Goodyear to 
be inspecting the cell of a debtors' prison instead of discharging 
the obligation of, paying for that which was his own by a claim 
quite as sacred as that of the heir to a piece of real estate : that 
his claim is as sacred and inalienable as here asserted, is the 
emphatic declaration of the same Professor Tyndall endorsed by 
the witness in a previous part (page 266) of his testimony. [See 
testimony of Professor Tyndall before Parhamentary Committee, 
in Appendix.] 

INCONVENIENCE OF PERIODICAL FEES. 

A not yet mentioned but most serious objection to the pro- 
posed changes may be stated as follows: Of those American 
patents which enter the market a large majority are disposed of 
territorially. This mode of disposition suits the wants and 
habits of the contracting parties, or could not have reached such 
general adoption. Now see what disturbance will be created in 
the system by the peridiodical fees: How are all the many pur- 
chasers of local rights — State, county, shop, &c. — to unite in 
paying their respective quota of the deferred fees ? How can they 
be sure that the patentee will be able and willing to pay them at 
the set times? No such assurance is possible — what follows? 
Either the patentee must, in advance, pay up the entire dues, 
which all familiar with inventors, as a class, know that only a 
i^"^ exceptionally wealthy individuals can afford to do, or he 
must forego the mode of territorial disposal of his right. But 
this is not -all ; for the same causes will prevent the partition, 
now so common, in undivided fractions — they will even be fatal 
to the mode so often resorted to, by which alone very many of 
the best inventions have been made possible, in which the 
funds required to develop and patent the invention have been 
procurable in consideration of an interest in the same. The 



ON THE PROGRESS OF INDUSTRIAL ARTS. 6/ 

extreme relative onorousness of the conditions will manifestly 
deter many from asking the protection of patents, an obstruc- 
tion which — it is as certain as a proposition in Euclid — will in 
turn operate to nip invention in the bud. This will act injuri- 
ously in many directions. It will discourage and suppress the 
efforts of struggling genius which enlightened communities are 
most solicitous to foster and encourage. 

The injustice and folly of such policy — this treason to the best 
elements of human progress — will swell the ranks of the dis- 
affected and convert into enemies some who might have become 
society's chief ornaments and saviors. 

By artificially exalting mere money-power, at the expense of 
productive, and especially of creative, industry, the worst possi- 
ble example will be set to the young, the irresponsible and the 
disaffected. 

By causing a congestion of the forces which now expend 
themselves naturally and healthily in the constantly widening 
avenues of intelligent activity, the proposed measures will be 
changed to a social poison — will breed bad blood, disorder and 
crime. 

By greatly reducing the number of applications for patents, on 
the principle of an excessive tariff, they will cut down the rev- 
enue of the Patent Office and oblige a reduction of the ma- 
chinery of preliminary examination — unless Congress should so 
far reverse all its antecedents as to eke out the expenses of the 
bureau from the public revenue. 

The Examining force being thus impaired, our system will be 
brought into still closer analogy with that of England, which 
some find it convenient to laud ! 

Even those dull souls who would abolish patent grants would 
be among the greatest sufferers, albeit unwittingly, on the same 
principle that one born blind is ignorant of the measure of his 
loss in the deprivation of sight. 

IS IT A TAX? 

''Make a bridge of gold for a retreating foe," says the mili- 
tary proverb. It can not, perhaps, be said that our fathers 
made such a bridge for their advancing friend, the inventor,* 



68 EFFECT OF PATENT GRANTS 

but we can truly say that — In removing some of the obstructions 
that beset his path — they made a bridge of gold for us. 

Gentlemen now propose to draw the lines tighter around the 
inventor, by what they are pleased to call "a. statute of repose" 
— of repose — for whom ? For the patentee ? No ! For the 
llgitimate licensee or purchaser? No! For the unauthorized 
user? Yes; and, without even reserving the right of minors, 
widows and absentees; they propose to further embarrass the 
inventor by stepping between him and his grantees, and by 
determining the contract value of his franchise ! ! And that not- 
withstanding that the constitution makes the right an exclusiye 
one. They further propose to embarrass the inventor, by putting 
It in the power of corporations — without even exaction of a bond 
— (vide Sections 3 and 9) to ruin him on sight. Finally, they 
propose to place "a restriction in the conditions imposed upon 
the license." 

Consistent with proponents' European idea, that the patentee 
is the recipient of a favor. General Leggett says : * ' Government 
may grant patents for one year, or two years, or five years, or 
fifty years," because ''the Constitution provides that patents 
shall be granted for a limited time;" but the Constitution as 
authoritatively states the object, to wit., the ' ' pivmotion of the 
useful arts." This is the sole purpose; ties the hands of the 
legislature, and obliges it to ascertain what limited time, while 
^^ provwting the progress of the useful arts^^ will, in the long run, 
form the most equitable adjustment between the two contracting 
parties, the inventor and the public. This ascertained — Congress 
is bound to respect It; and the expense to the patentee should 
be merely administrative ; only such as is required to entertain, 
define, and record the metes and bounds of the franchise. Con- 
gress has no authority to exact an impost as the price of its 
recognition of the inventor's rights In ''his Invention." 

Senator Morgan enquires whether the additional mulct is any 
more than a "restriction upon the license you [the public] give." 
To which General Leggett experiences no difficulty in respond- 
ing : "The taxing power is not invoked at all. It is a restric- 
tion in the conditions imposed upon the license." 

Senator Morgan — " It Is not a tax ? " 

Mr. Leggett — " It Is not a tax." 

Gentlemen, What iS it ? 



ON THE PROGRESS OF INDUSTRIAL ARTS. 69 

INFLUENCE OF THE PATENT SYSTEM ON AMERICAN 

EXPORTS. 

As to the increase and the now rapidly growing supremacy of 
many American manufactures, their successful invasion of for- 
eign markets and the part attributable to United States patents 
in creating this encouraging condition of things, we possess 
many emphatic testimonials. For example, Judge Storrow, in 
his argument, remarked : 

" In the long run, every one will buy of the manufacturers 
who manufacture the cheapest. It appears from the exports 
and imports of this country that we have been steadily gaining 
^/2 £";2^/(^;2^ in this respect. >l< * >K Since 1850 the manufac- 
tured articles have increased faster than the raw materials in our 
exports, and it is matter of common knowledge among those 
engaged in industrial pursuits, that, unless loaded by duties on 
raw materials, we have now come to the point when we can com- 
pete zvith England in large classes of cur manufactured prodjicts^ 

" With England and France it has been just the other way. 
Their exports of manufactured articles have decreased ; their im- 
ports of manufactured articles have increased. [Storrow, p. Z^r^ 

"The improvemtnts of our machinery have been 
aflTected byjour patent system out of a'l proportion 
to the maDBer in which the patent sysem of Eng- 
land has affected their industries. Otir patent system 
lias been made cheap and popular, and lias reached every zvork- 
man of iiiventive mind, for the number of patents granted shows 
that it reaches almost every workshop in the land. 

'* The increased gi'ozvth in industrial progress zuhich I have shozvn 
you in this country and as compared zvith England, has coincided 
with the period during zvhich zve have surpassed Jier in granting 
patents. [Storrow, p. 89.] 

We have got within the last year, some very interesting testi- 
mony, from foreign sources, as to the value of the [our] patent 
system. In England, their system, though theoretically, perhaps y 
not bad, yet practically it. has not bee7i zvhat zve consider a good 
patent system. That is to say, the expense of taking out pat- 
ents is g7rat, the expenses of litigating are enormous, and, more 
than that, the system has not become popidarized so as to reach th^ 
zvorking class. The habit and tone of mind among the large 



^O EFFECT OF PATENT GRANTS 

manufacturers, with some notable exceptions, has been to dis- 
courage their workmen from taking out patents, and the conse- 
quence is that, with a manufacturing population larger than ours, 
they take out about 3,500 patents instead of 13,000 patents; and 
they find, as a consequence, that they do not get inventions a7id 
improvements as we do. (Storrow, page 94). 

Sir William Thompson, on his return from our Centennial 
Exhibition, told the section of Steam Engineering of the British 
Association, of which he Is president, that unless the countries 
of Europe speedily amended their patent laws, and unless they 
amended them in a contrary direction to the bill pending in Parlia- 
ment, they must understand that they would lose their maiiufac- 
tiiring supremacy, a7td that America would take it from them. 
(Storrow, page 94). 

[Yet this is the direction in which Mr. Storrow would ^* amend " 
our law !] 

Mr. St. John V. Day, discussing a bill in the British Par- 
liament, similar to proponents,' and declaring that, unless they 
(the people of Engla^id) improved their system so as to give more 
general encouragement to inventors, they would lose their manufac- 
turing supremacy, and, with that, would give up their 
commercial supremacy, for that depended on their ability 
to cheaply supply neutral markets; and, after an interesting dis- 
cussion, the association resolved that a committee be appointed 
to procure changes In the law, so that It might be more favora- 
ble to Inventors. The consequence has been that only last 
June the government withdrew their pending bill. (Storrow, 
page 95). 

Mr. Hulse, the English judge of textile machinery at the 
Centennial, says: 

*'As regards extent of invention and ingenuity, the United 
States was far ahead of other nations. ^^ ^ ^ ^\\q 

extraordinary extent of ingenuity and invention in the United 
States, and manifested throughout the exhibition, I attribute to 
the natural aptitude of the people, fostered and stimulated by an 
admirable patent law and system, and ^ to the appreciation of 
inventions by the people generally. 

''England took the lead In time, and her patent law gained 
much the start of this country and of France; yet this country, 
by the character of its law, which not only gave the most effectual 



ON THE PROGRESS OF INDUSTRIAL ARTS. yi 

protection to property in inventions^ but placed the expense of ob- 
taining patents so low that the poorest inventors could secure the 
protection of a patent, has reaped greater benefit relatively than 
England. (Mr. Chauncey Smith, p. 260.) 

''Our country has secured to the common laborer, as no other 
country has, the fruits of his inventions, and richly he has repaid 
the provision. (Chauncey Smith, p. 266.) 

*'The superiority of American manufactures over those of 
the old world, has induced the German authorities to devise 
measures to protect its industries against this 7iew and powerful 
competitor. It is understood that one of the main reasons for 
the decline of German industry has been the want of a useful 
arid practical patent law. This omission has now been sup- 
plied. The new German patent law, which has now been in 
existence since last July, is necessarily formed after patent insti- 
tutions in the Ujtited States. (Alfred E. Lee, Consul- General at 
Frankfort on the Main.) 

THE ENGLISH SYSTEM OF HIGH PERIODICAL FEES 

WORKS BADLY. 

The Hon. J. M. Thatcher, U. S., delegate to the Patent 
Convention in Vienna, reports, in reference to the inadequacy of 
the English plan, with its high progressive fees, to prevent the 
issue of improper grants ; remarks ; ' * Under the English system, 
a patent is still regarded as a favor from the Crown and, in some 
sense, a monopoly in its nature. As might be expected, the 
English statute has always failed fully to recognize the rights of 
original inventors, and amply to provide for their protection. In 
the absence of any provision for an official examination, the only 
guarantee of novelty in the invention for which a patent is 
granted, is the oath of the applicant, who also swears that he has 
made an examination for the purpose of ascertaining the truth of 
his statements. The result is that the same thing is often 
patented over and over again ; and a patent in England has no 
value until its validity has been established by litigation." 

In illustration of this state of things the writer may here say 
that, having some years ago to look over the British patents 
relating to a specific class of improvements, his associate in the 
work discovered no less than seven English patents, granted at 



72 EFFECT OF PATENT GRANTS 

different periods, for one and the same identical device. And it 
by no means follows that any one of these patentees swore to an. 
invention which he knew was not his own. On the contrary, 
it is certain that nearly all and probably all believed them- 
selves the inventors of that which they sought to patent. 
There is a kind of infatuation which induces an inventor to 
believe that the creation of his thought, this child of his brain, 
had no prior existence. Even under our comparatively liberal 
fees, it is often almost impossible to persuade an inexperienced 
inventor that it is worth while to wait a week and expend a 
small fee to ascertain the patentable novelty of his device. Why 
should an applicant desire to incur the heavy present and 
prospective charges of a British patent, if he knew beforehand 
that his claim was worthless ? 

As to the exclusion of valuable inventions by the high and 
periodical English fees, and also their utter inefficiency to pre- 
vent the issue of a swarm of worthless and conflicting grants — 
all competent testimony is unanimous and conclusive. 

Thus, Edward Bally, the well known manufacturer, in his- 
report, as Commissioner from Switzerland, to the Centennial 
Exhibition, said: ''Many European States have also a patent 
system, but as they see in it, first of all, a source of revenue 
to the State, those of moderate fortu7ie can hai'dly obtain a patent!^ 

Mr. Hulse, the Commissioner from Great Britain, said : " Judged 
by its results in benefiting the public, both by stimulating inven- 
tors and by giving a perseveringly practical turn to their labors, 
the American patent law must be admitted to be the most successfid. 
* * * I asked one inventor of a very good invention, * Why 
do you not patent in England ? ' He answered : ' The conditions 
in England are too onerous!' meaning, no doubt, that tlie cost of 
a patent in England is too great, and the time for which it is 
granted too short." ^i^ * >i< '* England, " said Mr. Hulse, 
/'undoubtedly loses much of the benefit which might be had! 
from the inventiveness of Englishmen, through the want, in 
English patent law, of encouragement and protection to inven- 
tors unsupported by capitalists." (Correspondence of State De- 
partment, 1877.) 

In regard to the exclusion of inventions of high intrinsic 
value, and their consequent secret use and final loss to the 
world, owing to the onerous conditions of the English fees,. 



ON THE PROGRESS OF INDUSTRIAL ARTS. 73 

Mr. John Farey gives a number of striking illustrations, thus: 
James Watt contrived a machine for producing fac similes of 
sculptures to any desired scale ; and showed Mr. Farey a num- 
ber of beautiful specimens of the work, in ivory and alabaster; 
and made him a present of one carved by his machine. The 
secret was never disclosed, and Mr. Watt dying in 1819, the 
invention was lost. This was undoubtedly a forerunner of our 
Blanchard's lathe, for producing gun stocks and other irregular 
forms, and whose invention and publication — through being pat- 
ented — has been the principal cause of American supremacy in 
the lucrative manufacture of small arms, which England thus lost 
through her grasping policy toward her men of genius. Those 
who choose to enquire may see in the testimony of this learned 
witness a wonderful list of inventions thus suppressed; the pro- 
ductions of such men as Dr. Wollaston, of Mathew Boulton^ 
of Bramah, and such inventors of the first rank. 

GERMINAL INVENTIONS. 

The arguments before the House and Senate Committees of 
last Winter, abounded in superficial and specious conclusions,: 
derogatory of the claims of the original projector, in favor of 
those more fortunate finishers of the edifice for which the first 
broke ground. With these gentlemen, it is not the man who first 
breaks up the immemorial waste ; not he who first casts seed into. 
the ground ; not the pioneer, the cultivator, not the miller even, 
but only the baker, who alone, in their estimate, furnishes the 
community with an article ''available for profitable use;" "ani 
article practically able to work successfully." 

These gentlemen would strangle invention in its cradle, because 
it cannot do the work of a man. 

In reverting to the annals of those who blazed fresh tracks in the 
industrial progress of their race, and the too frequent ingratitude 
of some of the after comers and beneficiaries of their sacrifices; 
one is forcibly reminded of the aptness of William Howitt's 
reflections on his story of The Old and the New Squatter. > 
"Theirs was the fate of the first heralds of human progress and 
of the whole victim race of discoverers, inventors and projectors,; 
the advanced guard and the forlorn hope of the world's destiny.i 
They labored, and others have entered into their labors, lay! 
6 



74 EFFECT OF PATENT GRANTS 

claim to their honors, and put forward marvelous demands on 
the strength of their misfortunes. TJiy poverty, poor Tom 
Scott, has worked the affluence of the sleek and prudent Davy 
McLeod. The racking of thy sinews and aching of thy bones 
have smoothed his pillow; thy pains are his pleasures; thy 
battles have produced his peace ; thy watchings, his sleep ; thy 
drenchings in the midnight frost, his dryness of lodging. On 
every pang and grief and care of thine, he has built his present 
heaven ; and the last blast of desolation that laid prostrate in the 
burning.ashes, all that the world held dear to thee, is the grand 
god-send to him, on which he boldly asks, that the rewards of 
his country shall be added to his already unweildy affluence. 

BENEFITS OF INVENTION. 

We have seen how much depends on invention, and how, under 
the fostering wing of the patent system, labor-saving improve- 
ments have, in the memory of living men, multiplied the means 
of production. That the brief monopoly accorded in what a 
man has a right to call his own, if to anything in this world, and 
the unprecedented activity in invention, and its handmaids — 
manufactures and commerce — stand as closely allied as cause and 
effect, as do almost any matters of admitted sequence, requires 
no occult power of mental ratiocination to perceive. The plain 
fact is, that every invention is a vertiure^ involving, in most 
cases, much risk, labor, money-outlay, and sometimes a high 
order of scientific knowledge, close thought, and indomitable 
faith and persistence, and no sensible man would incur all this 
certain loss on an experiment which, without this guerdon, would 
be at the disposal of any adventurer. 

For what is not humanity indebted to invention ? To it he 
owes the possession of food, raiment, the arts of spoken, written 
and printed speech, and the means of flashing it around the 
world; to it he is indebted for his home, the garden, the orchard, 
music, painting, poetry, architecture, locomotion, all the treas- 
ures of thought in all the ages, the God-like in form and feature, 
the angelic in thought and deed. A vision and power of enjoy- 
ment, multiplied ten thousand fold, and reaching out from this 
tiny speck in time and space into the eternities of the past and 
the future. 



ON THE PROGRESS OF INDUSTRIAL ARTS. 75 



KECAPITULATIOK 

The instances cited show conclusively that the presumption 
that every patentee is able to pay the proposed additional fee 
when due, when he so desires, is contrary to the fact 

That it is not true that a neglect to pay the additional fee 
would necessarily prove that the patentee "does not deem it 
worth preserving." 

That it is not true that every patentee has fully tested his 
invention so as to know whether it is pecuniarily valuable before 
the expiration of the first or even of the second proposed period 
of additional payment. 

That it is not true, as implied in proponents' arguments, 
that the patentee is necessarily master of the situation, and can 
do as he pleases in promoting his invention. 

That it is not true that the public, especially those who em- 
ploy labor-saving improvements in their business, can eventually 
be benefitted by the proposed measures; and least of all, that 
later patentees can afford to set aside the interests of theif 
predecessors. 

. That it is no less expedient than unjust to go back on the 
American system, which has, though not perfect, worked con- 
fessedly so much better than any other, and especially at a time 
when the best informed European publicists are urging their, 
governments to follow our successful example. 

That the instances cited and even the testimony of propo- 
nents abundantly show, that the system of periodical additional 
fees will not, as alleged, operate to weed out patents for worth- 
less inventions, leaving alive only those which are valuable, but 
on the contrary will operate to vacate some of the most valu- 
able, whjle it will leave alive some of the least so. 

That patents for inventions of a fundamental character, in the 
hands of indigent patentees, which patents happen to contain a 
** feature" that a subsequent inventor "unconsciously uses," 
should not, as alleged by proponents, be put in jeopardy of their 
lives by the imposition of an additional tax upon such earlier 
patent. 



76 EFFECT OF PATENT GRANTS \j |j 



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That the grounds of the proposed legislation [Sec. 1 1], as 
stated by Mr. Storrow himself, are unworthy of consideration, 
because manifestly contradictory and illusive in their very terms^ 
the declaration of object being first stated to be the relief of the 
record and of later operators from worthless patents, while the 
explanation of the effect implies an admission that the real ani- 
mus and result of the section will be to ''kill" valuable ones.. 
[See page 156.] 

That the system of periodical additional payments — besides 
constituting an unnecessary, unjust and impolitic tax on inven- 
tion as such — would completely disorganize and embarrass the 
accustomed disposition of American patent-rights, both frac- 
tional and territorial, and be disastrous in its effects on American- 
Invention. 

That a proposition for a large increase of the already sufficiently, 
onerous burdens of inventors, unaccompanied by any measures 
for their aid, betrays a spirit of hostility to a most useful class of 
citizens, which should receive no encouragement by the law- 
making power, if for no better reason, for the sufficient one that 
such a measure is unconstitutional, as manifestly not calculated 
to ** promote" but to embarrass and retard ''the progress of 
the useful arts;" to impair the rights of contract and recovery, 
and to destroy the exclusive element of the franchise which the 
constitution explicitly prescribes. 



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